Government Gold SMA Terms and Service Description.pdf

Service Maintenance Agreement Terms and Conditions

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EXHIBIT TO GOVERNMENT ORDER FOR SMAs

SERVICE MAINTENANCE AGREEMENT TERMS AND CONDITIONS– Agfa HealthCare Corporation (for U.S. government customers)

1. Maintenance Services. During the Initial SMA Term and the Renewal Terms of this Service Maintenance Agreement (this “Agreement” or this “SMA”), Agfa HealthCare Corporation (“Company” or “Agfa”) will provide Maintenance Services for the Equipment and Software covered by this SMA.

“Maintenance Services” means corrections to products covered by this SMA that are necessary due to a defect, error, failure, or malfunction that prevents such products from performing their designed functions substantially in conformity with the specifications set forth in their Documentation. Maintenance Services for Software under this SMA are provided only to the two (2) most current Minor Releases of Software. Company may, in its sole and absolute discretion, agree to provide Maintenance Services for Software products that are more than two (2) Minor Releases prior than the most current Minor Release of such Software, at an additional cost. Customer shall comply with Company’s procedures for requesting support services, as may be modified from time to time. Under this SMA, Company shall provide the Maintenance Services and the other services described in Exhibit A, attached hereto and incorporated herein, Equipment and Software covered by this SMA. In the event of a conflict between Exhibit A and the main body of this Agreement, Exhibit A shall control. This SMA supersedes and replaces the terms and conditions of all prior service maintenance agreements between the parties.

2. Unless a different initial term is shown on Company’s final quotation for this SMA, this SMA shall have an initial term of five (5) years (the “Initial SMA Term”), commencing on the coverage start date stated on Company’s SMA quotation. Following the expiration of the Initial SMA Term, this SMA will automatically renew for successive one (1) year periods (“Renewal Terms”). If Customer has discontinued all use of a Software product in a production environment, it may request that such Software product be removed from the SMA by giving Company written notification of its request at least three (3) months prior to the end of the then-current term of the SMA.

3. In consideration of Company providing Maintenance Services under this SMA, Customer shall pay a maintenance fee (the “Maintenance Fee”), which is due and payable monthly in arrears. The Maintenance Fee may be adjusted by Company from time to time to include coverage for Equipment, Software, and integrations subsequently acquired by Customer under this Agreement. The Maintenance Fee shall accrue and be fully paid and earned on the date due and not reimbursed regardless of any termination of this SMA after such date. If Customer has purchased any AGFA HealthCare managed services, then in consideration of Company providing such managed services, Customer shall pay a managed services fee, which also is due and payable monthly in arrears.

4. Each year, Company may adjust the Maintenance Fees, and any increases in the Maintenance Fees will not exceed the greater of four percent (4%) or the actual change in the CPI over the previous twelve (12) month period. In addition, with respect to Software covered by a SMA whose license fee is based on an annual Exam volume, the Maintenance Fee for such Software is subject to an annual increase proportional to the increase in Customer’s actual Exam volume in the prior twelve (12) month period. The Maintenance Fee for a partial month’s services will be prorated on the basis of a thirty-day (30) month.

Final billing will be subject to all applicable taxes.

5. Company may terminate this SMA, without liability or costs, if Customer, its employees or agents materially breach any of its duties or obligations hereunder or fail to make any payment to Company required under the SMA, and if such breach is not cured within thirty (30) days after receipt of a written notice from Company specifying the breach and demanding that it be cured.

6. After termination or expiration of this SMA, Maintenance Services, Software Major Releases, Software Minor Releases, and Maintenance Releases will no longer be provided unless Customer purchases these maintenance services and Software versions separately from Company, which will be charged to Customer at Company’s then-current time and materials prices.

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7. If this SMA expires or is terminated, and Customer subsequently seeks to reinstate Maintenance Services, Customer must pay for reinstatement services, including a site inspection to verify the condition of Customer’s Software before reinstatement of Maintenance Services. Company reserves the right to refuse reinstatement of Maintenance Services after such site inspection. In addition, Customer shall pay:

(a) the cumulative Maintenance Services fees applicable for the period during which support lapsed; (b) the annual Maintenance Fees for the reinstated SMA; and (c) the then-current reinstatement fee (including any fees necessary to reinstate warranties that have lapsed during the lapsed Maintenance Services period).

8. Exclusions. Maintenance Services do not include the following, and Company will charge Customer for services provided under any of the following scenarios:

a. Customer-Supplied software: Software that has not been provided by Company to Customer is NOT covered under this SMA.

b. Hardware: Support and repair of hardware not provided by Company under this Agreement or procured separately by Customer from another vendor. Customer will be solely responsible to enter into appropriate arrangements with the original equipment manufacturer or others for support of such hardware.

c. End of Service Life: Company has the option, with written notice to Customer, to discontinuing providing Maintenance Services under this SMA for Equipment and Software that has reached End of Service Life. “End of Service Life” (“EOSL”) means the date on which the manufacturer of a product has discontinued selling a product and in most cases no longer provides maintenance services or updates for such product. Company may, in its sole and absolute discretion, agree to include Software products that are EOSL in a SMA, at an additional cost.

If Company continues providing Maintenance Services under this SMA for a product that has reached EOSL, Company will use commercially reasonable efforts to do so, however, spare parts for EOSL Equipment might not be available, and Software Major Releases, Software Minor Releases, and Maintenance Releases, including patches and security updates, for EOSL Software will not be available. Company shall use commercially reasonable efforts to notify customers in advance regarding EOSL dates for the products sold and licensed by Company to end user customers;

d. Service or repair of damage required due to any external cause, other than Company’s acts, including without limitation, service or damage resulting from accidents, operator error, transportation, neglect or misuse, failure or fluctuation of electrical power, air conditioning, humidity control, telephone equipment or communication line failure, failure or poor performance of the network if it is not maintained by Company, failure of foreign interconnected equipment or other equipment, improper use, strikes, riots, vandalism, acts of war, terrorism, nuclear disaster, or natural causes such as fire, flood, water, wind, earthquake or other Acts of God;

e. Service or repairs resulting from the failure of Customer to continually provide a suitable environment for the Equipment, the Software, or the hardware on which the Software is installed, including, but not limited to, the failure to keep the System free from excessive dirt and dust, the failure to provide adequate air conditioning and humidity control, and service and repairs resulting from the failure of Customer to perform its designated maintenance duties;

f. Service to repair issues with the Equipment or the Software caused by any installation or attachment, modification, repair or replacement, update, enhancement or other addition or change made by persons other than Company or an authorized representative of Company;

g. Service and repairs to hardware accessories (such as, by way of example and not limitation, speech mikes, mice, UPS, cabling, and keyboards);

h. Service to repair issues with the Equipment or the Software caused by products not provided by Company to Customer for use with the System;

i. Service to repair issues with the database Software caused by non-Company personnel;

j. Any other services, updates, or repairs not specifically defined in this Agreement as being included in this SMA; and

k. Equipment or Software that is damaged or is rendered defective as a result of a virus infection, worm infestation, or other similar form of hacker attack, malicious software, logic bomb, denial of service attack, malformed command attack, Trojan, or RAT.

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i. Customer is solely responsible for protecting its network and non-server stations from hacker attacks (including denial of services, malformed commands, probing, social engineering), virus, worm, malicious software, and similar outside intrusion. Customer agrees to inform Company Support immediately of any virus infections or other known hacker attacks on the computers, peripherals or network to which the System is attached. Customer is therefore solely responsible for taking security precautions for the entire information system to which the System is attached.

ii. Company is not responsible for information which is altered or destroyed as the result of a hacker intrusion or an action caused by malicious software from an unauthorized source.

iii. For system damages resulting from hacker attacks (including denial of services, malformed commands, probing, social engineering), virus, worm, malicious software, and similar outside intrusion, Company will provide remedial services on a fee only basis at Company’s then-current time and materials service rates.

9. Customer and Company shall comply with their respective obligations described in Exhibit A, attached hereto and incorporated herein.

10. Payment of Company’s invoices is due in full without set-off within thirty (30) days after the date of invoice. All payments must be made by electronic means, such as wire transfer or ACH (Automated Clearing House Network). Any costs incurred by Customer in relation to such electronic payment shall be borne by the Customer. Should Customer fail to provide Company with a purchase order number prior to the invoice issuance date, the invoice shall be validly issued even in the absence of a mention of such purchase order number. Any amounts unpaid or overdue shall accrue interest at the lesser of the rate of one percent (1%) per month or the maximum amount permitted by law, if less, until paid in full. The service charge for a partial month’s services will be prorated on the basis of a thirty-day (30) month. Final billing will be subject to all applicable taxes. Customer shall reimburse Company for all costs and legal fees, including reasonable attorneys’ fees, incurred by Company or its agents in seeking to enforce Customer’s payment obligations under this SMA. Sales, use, or other taxes measured by sales or receipts are not included in the prices shown. Where applicable, such taxes will be billed if a valid exemption certificate is not furnished. Taxes will be billed on the full price of the items purchased, i.e., the amount prior to discounts, credits, etc. Where a valid exemption certificate is furnished, tax will not be billed unless Company can determine that the purchase will be used in a taxable manner. Omission of tax should not be construed as a basis for exemption. If items purchased are used in a taxable manner, and no tax is billed by Company, Customer is required to remit applicable taxes directly to the taxing authorities and shall fully indemnify Company with respect thereto. Without limiting its other legal or equitable rights, Company may withhold Maintenance Services until undisputed overdue invoices are paid in full. For the purposes of this Maintenance Agreement, an invoice is “disputed” only if Customer has followed the invoice dispute notification and resolution process described here: If Customer has a dispute with an invoice, Customer must submit such dispute, including the reasons for the dispute, in writing to Company’s Credit Department within ten (10) days of Customer’s receipt of such invoice, and the parties shall use best efforts to resolve the dispute expeditiously. When the dispute is resolved, Customer shall pay the invoice within ten (10) days of resolution. If Customer does not follow the foregoing invoice dispute notification and resolution process, then the invoice is deemed undisputed.

11. Limited Warranty.

a. Company warrants that it will perform the Maintenance Services in a workmanlike manner and in compliance with all applicable laws and regulations. Labor is warranted for thirty (30) days.

b. OTHER WARRANTIES EXCLUDED. THE WARRANTIES EXPRESSLY SET FORTH IN THIS

SECTION ARE THE EXCLUSIVE WARRANTIES PROVIDED BY COMPANY AND ARE IN LIEU OF ALL

OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT

LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND

FITNESS FOR A PARTICULAR PURPOSE.

c. Limited Remedy. CUSTOMER’S EXCLUSIVE REMEDY AND COMPANY’S SOLE

OBLIGATION UNDER THIS AGREEMENT IS TO RE-PERFORM MAINTENANCE SERVICES THAT DO

NOT CONFORM TO THE FOREGOING WARRANTY, PROVIDED CUSTOMER MAKES ITS WARRANTY

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CLAIM IN WRITING TO COMPANY PRIOR TO THE EXPIRATION OF THE APPLICABLE WARRANTY

PERIOD.

12. LIMITATION OF DAMAGES. THE SOLE LIABILITY OF COMPANY FOR ANY CAUSE,

REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT,

INCLUDING NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO THE PRIOR TWELVE (12)

MONTHS’ MAINTENANCE FEES PAID BY CUSTOMER FOR THE PRODUCT THAT IS THE BASIS FOR

THE CLAIM OR CAUSE OF ACTION. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS ON

DAMAGES CONTAINED IN THIS PARAGRAPH WILL NOT APPLY TO CLAIMS FOR DEATH OR

PERSONAL INJURY CAUSED SOLELY BY COMPANY’S NEGLIGENCE OR INTENTIONAL

MISCONDUCT. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS

SMA.

13. Customer acknowledges and agrees that in entering into this SMA it has not relied on any representations or warranties other than those of Company expressly set forth in this SMA.

14. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR: (1) ANY

INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST

PROFITS, LOST DATA, LOST BUSINESS OPPORTUNITY, LOSS OF GOODWILL OR LOST USE) OR

PUNITIVE DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT

(INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF CUSTOMER

OR ANY OTHER PERSON HAS ADVISED COMPANY OR ANY OF ITS SUPPLIERS OR LICENSORS

OF THE POSSIBILITY OF SUCH DAMAGES. THE REMEDY OF CONSEQUENTIAL DAMAGES SHALL

NOT BE AVAILABLE EVEN IN THE EVENT THE SOLE AND EXCLUSIVE REMEDY OF RE-

PERFORMANCE OF MAINTENANCE SERVICES FAILS OF ITS ESSENTIAL PURPOSE.

15. The provisions of Section 11 (Limited Warranty), Section 12 (Limitation of Damages), and Section 14 (Limitation of Liability) allocate the risks under this SMA between Company and Customer, and Company’s pricing reflects this allocation of risk and the limitation of liability agreed to under this SMA.

16. Governing Law; Jury Trial Waiver. This SMA shall be governed by, and construed in accordance with, the laws of the State of South Carolina without application of conflict of laws principles. CUSTOMER

HEREBY AGREES TO WAIVE TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATED

TO THIS SMA OR ANY OTHER AGREEMENT OR TRANSACTION BETWEEN THE PARTIES HERETO.

17. Notices. All notices and requests in connection with this SMA shall be given or made upon the respective parties in writing and shall be delivered by hand, by a courier service that has the ability to track deliveries and confirm receipt, or by U.S. Mail, postage prepaid, certified or registered, return receipt requested, addressed as follows:

COMPANY: Agfa HealthCare Corporation 10 South Academy Street Greenville, SC 29601 Attention: Agfa HealthCare Legal Dept.

with a copy by email (required) to: healthcare.legal@agfa.com

CUSTOMER: To the billing address of the Customer stated in the Service Maintenance Agreement quotation, to the attention of Customer’s Purchasing Department.

18. Force Majeure. The term “Force Majeure” shall be defined as fire or other casualty or accident; act of God; severe weather conditions; strikes or labor disputes; pandemics and epidemics; war or other violence; law, order, proclamation, regulation, ordinance, demand or requirement of any governmental agency; or any other act or condition whatsoever beyond the reasonable control of the parties hereto. If the performance of this SMA by either party or any obligation hereunder is prevented, restricted, or mailto:healthcare.legal@agfa.com

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interfered with by reason of a Force Majeure event, the party whose performance is so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such Force Majeure event, provided however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall continue performance hereunder with dispatch whenever such causes are removed.

19. The Software and Documentation are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth herein. Vendor is Agfa HealthCare Corporation, 10 South Academy St., Greenville, SC 29601.

20. Governmental Access. This Section is included in this SMA because of the possible application of 42 U.S.C.A. §1395x (v)(1)(I). If that statutory provision shall be inapplicable to this SMA, then this Section of this SMA shall be deemed not to be part of this SMA and shall have no force or effect. Until the expiration of four (4) years after the furnishing of services under this SMA, the Company, shall make available upon written request of the U.S. Secretary of Health and Human Services or the U.S. Comptroller General or any of its duly authorized representatives, such SMA, and books, documents, and records of the Company (or excerpts thereof) that are necessary to verify the nature and extent of costs incurred by Customer under such SMA. If the Company carries out any of the duties under this SMA with a value of $10,000 or more over a twelve (12) month period through a subcontract with a related organization, such subcontract must contain a clause to the effect that until the expiration of four (4) years after the furnishings of services under the subcontract, the related organization shall make available, upon written request of the U.S. Secretary of Health and Human Services, the U.S. Comptroller General or any of its duly authorized representatives, the subcontract, and books, documents, and records of the related organization (or the excerpts thereof) that are necessary to verify the nature and extent of costs incurred by Customer under the subcontract.

21. Each party acknowledges that it has read this SMA, understands it and agrees to be bound by its terms, and further agrees that this SMA represents the entire agreement between the parties relating to the subject matter hereof, which supersedes and merges all prior quotations, proposals, understandings and all other agreements, oral and written between the parties relating to its subject matter. No additional contract terms in any purchase orders or other forms issued by Customer that purport to modify, amend or add to the terms of this SMA shall be part of this SMA or be binding on Company. This SMA may only be modified by a written agreement signed by authorized representatives of both of the parties.

22. Definitions.

a. All references to “Software” throughout this Agreement shall mean the computer software in digitally encoded machine readable “object code” form for which Customer has been granted a license from Company and which Customer has elected to receive Maintenance Services under this Agreement.

“Software” includes both Agfa-Developed Software and Third Party Software.

b. “Agfa-Developed Software” means software programs developed by Agfa HealthCare Corporation or members of the Agfa HealthCare Group of companies that are Covered Assets and that have been acquired by Customer from Agfa. Examples of Agfa-Developed Software are Agfa HealthCare XERO Viewer software and Agfa integration software to third party IT systems, such as EMR, portals, desktop applications, and customer provided hardware. Agfa-Developed Software also includes interfaces and integrations developed by Agfa HealthCare Corporation or members of the Agfa HealthCare Group of companies.

c. “Third- Party Software” means the software programs acquired by Customer from Agfa that are Covered Assets and that are developed by entities other than Agfa HealthCare Corporation or members of the Agfa HealthCare Group of companies

d. “Covered Assets” means the Equipment and Software items listed in the Customer’s final Service Maintenance Agreement quotation.

e. “Product Generation” (sometimes also referred to as “Major Platform” or “Architectural Release”) is a completely new Software product that makes a significant change to the architecture or technology used, and which the Company licenses separately for a fee. An operating system upgrade

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typically is needed for a new Product Generation, and typically the minimum hardware requirements also change. A new Product Generation is designated by an increase in the revision of the first digit in a versioning system, for example, version 7.X.X to version 8.X.X.

f. Software “Major Release” (sometimes also referred to as a Software “Upgrade”) is a new version of the Software that makes a significant change to the base Software module in which such Software is improved or new features are added to the base Software program and that do impact the intended use of the Software. Company licenses a Software Major Release separately for a fee. An operating system upgrade is often needed for a new Software Major Release, and often the minimum hardware requirements change. Software Major Releases do not include separately licensed new software applications or modules. Software Major Releases do not include software programs that are so designated by Company, in its sole discretion, as new Product Generation. For example, Enterprise Imaging software is not new Major Release of IMPAX® radiology or IMPAX® cardiology software; Enterprise Imaging software is a new Product Generation. With respect to Enterprise Imaging Software, a new Software Major Release is designated by an increase in the revision to the right of the first decimal point, for example, version 8.1.X to version 8.2.X.

g. Software “Minor Release” (sometimes also referred to as a Software “Update”) means a modification made by Company of the Software licensed to Customer, which modification is not designated by Company as a new Major Release and includes minor improvements to the Software without changing its basic design, structure or functionality, and which do not impact the intended use. Company licenses a Software Minor Release separately for a fee. Hardware changes may or may not be needed for a Software Minor Release. Software Minor Releases do not include any new Software Major Releases, Software modules, options or future products, which Company licenses separately for a fee. With respect to Enterprise Imaging Software, Software Minor Releases are designated by an increase in the revision to the right of the second decimal point, for example, version 8.X.1 to version 8.X.2.

h. “Maintenance Release” (sometimes also referred to as a “Service Update”) means a Software update applied to a single software component of the Software, which change is an internal change designed to correct bugs or otherwise provide minor improvements to performance without changing the Software’s basic design, structure or functionality. A Maintenance Release also can be an emergency software fix to address an urgent non-conformance of a product complaint that affects a specific Customer’s immediate operational capability. With respect to Enterprise Imaging Software, Maintenance Releases are designated by an increase in the revision to the right of the third decimal point, for example, version 8.X.X.007 to 8.X.X.008.

i. “Documentation” means the Company’s and its suppliers’ then-current user guides or manuals for use of the Equipment and the Software.

j. “Equipment” means hardware products purchased by Customer from Company and that are Covered Assets.

k. An “Exam,” also referred to as a “Study,” means a study performed on any modality or on any image capture device that results in the creation of a study instance UID or any other noted documentation that comes in with a unique identifier, including photographs, which is processed and stored in the system of which the Software is a part.

l. The “Go Live Date” means the date that the Equipment and/or Software, as applicable, have been implemented on Customer’s system and are available for regular use by Customer.

23. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior agreements, understandings, covenants, arrangements, discussions and negotiations, whether written or oral concerning its subject matter. The parties explicitly acknowledge and agree that neither has executed this Agreement in reliance upon any representation or statement made by the other that is not expressly contained in this Agreement.

Any terms or conditions of any purchase order or other Customer document that purports to change or add to the terms of this Agreement shall have no effect. This Agreement may only be modified by a written agreement signed by authorized representatives of both of the parties.

24. Miscellaneous. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right. Neither the expiration nor the termination of this SMA shall terminate any obligations or liability accrued to the time of such expiration or termination, whether expressly stated within that provision or not. Customer may not assign this SMA without the prior

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written consent of Company, which consent shall not be unreasonably withheld. This SMA may be assigned by Company, including but not limited to an assignment in connection with the sale, assignment or other transfer of Company’s business, or any reorganization between or among Company and any of its affiliates. Any provision of this SMA that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this SMA or affecting the validity or enforceability of such provision in any other jurisdiction.

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EXHIBIT A

Gold Service Maintenance Agreement

Service Maintenance Agreement (“SMA”) Service Plan Description

Standard Activities:

• ASSM customer self service portal - Access to the ASSM customer self-service portal will be granted to users defined by Customer. Customers can open, update and close incidents and service requests. An integrated knowledge base is provided within the self-service portal.

• Incident Management - Phone and remote support to assist with resolving a defect, error, failure, or malfunction that prevents the Equipment and Software covered by this SMA from performing their designed functions substantially in conformity with the specifications set forth in their Documentation. On-site repairs are provided for Equipment during Agfa’s normal business hours of 8 a.m. – 5 p.m., Agfa holidays excepted, if a problem with the Equipment cannot be resolved through phone or remote support. On-site maintenance provided outside of these hours will be charged to Customer at Agfa’s then-current time and materials rates for SMA customers. On-site Maintenance Services for Software are not included in this SMA. If on-site service to Software is required, Agfa’s then-current time and material charges will apply.

• Integration maintenance - Customers are required to purchase a SMA on each integration provided by Agfa.

Integrations could include software desktop integration to third party dictation or reporting systems, Electronic Medical Record integration for image viewing, customer managed storage, VMWare or server integration, VNA integration, or RIS/HIS integration. This maintenance provides integration support in the event that the interface on the Agfa side is upgraded to a new Software Release, as well as break/fix repairs, and troubleshooting support.

• Additional activities –Agfa and Customer will perform the activities identified in the attached chart as being their respective responsibilities.

Agfa Software Programs – included with SMA:

• Software Major Releases to the Agfa-Developed Software programs covered by the SMA

• Software Minor Releases for the Agfa-Developed Software programs covered by the SMA

• Maintenance Releases to the Agfa-Developed Software programs covered by the SMA

Third Party Software Programs – included with SMA:

Maintenance Releases to the Third-Party Software programs covered by the SMA

Definitions:

“Agfa-Developed Software” means software programs developed by Agfa HealthCare Corporation or members of the Agfa HealthCare Group of companies that are Covered Assets and that have been acquired by Customer from Agfa. Examples of Agfa- Developed Software are Agfa HealthCare XERO Viewer software and Agfa integration software to third party IT systems, such as EMR, portals, desktop applications, and customer provided hardware. Agfa-Developed Software also includes interfaces and integrations developed by Agfa HealthCare Corporation or members of the Agfa HealthCare Group of companies.

“Documentation” means the Agfa’s and its suppliers’ then-current user guides or manuals for use of the Equipment and the Software.

“Equipment” means the hardware acquired by Customer from Agfa that are Covered Assets.

“Software” means the software programs and integrations acquired by Customer from Agfa.

Software “Major Release” (sometimes also referred to as a Software “Upgrade”) is a new version of the Software that makes a significant change to the base Software module in which such Software is improved or new features are added to the base Software program and that do impact the intended use of the Software. Company licenses a Software Major Release separately for a fee. An operating system upgrade is often needed for a new Software Major Release, and often the minimum hardware requirements change. Software Major Releases do not include separately licensed new software applications or modules.

Software Major Releases do not include software programs that are so designated by Company, in its sole discretion, as new Product Generation. For example, Enterprise Imaging software is not new Major Release of IMPAX® radiology or IMPAX® cardiology software; Enterprise Imaging software is a new Product Generation. With respect to Enterprise Imaging Software, a

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new Software Major Release is designated by an increase in the revision to the right of the first decimal point, for example, version 8.1.X to version 8.2.X.

Software “Minor Release” (sometimes also referred to as a Software “Update”) means a modification made by Company of the Software licensed to Customer, which modification is not designated by Company as a new Major Release and includes minor improvements to the Software without changing its basic design, structure or functionality, and which do not impact the intended use. Company licenses a Software Minor Release separately for a fee. Hardware changes may or may not be needed for a Software Minor Release. Software Minor Releases do not include any new Software Major Releases, Software modules, options or future products, which Company licenses separately for a fee. With respect to Enterprise Imaging Software, Software Minor Releases are designated by an increase in the revision to the right of the second decimal point, for example, version 8.X.1 to version 8.X.2.

“Maintenance Release” (sometimes also referred to as a “Service Update”) means a Software update applied to a single software component of the Software, which change is an internal change designed to correct bugs or otherwise provide minor improvements to performance without changing the Software’s basic design, structure or functionality. A Maintenance Release also can be an emergency software fix to address an urgent non-conformance of a product complaint that affects a specific Customer’s immediate operational capability. With respect to Enterprise Imaging Software, Maintenance Releases are designated by an increase in the revision to the right of the third decimal point, for example, version 8.X.X.007 to 8.X.X.008.

“Third-Party Software” means the software programs acquired by Customer from Agfa that are Covered Assets and that are developed by entities other than Agfa HealthCare Corporation or members of the Agfa HealthCare Group of companies.

“Covered Assets” means the Equipment and Software items listed in the Customer’s final Service Maintenance Agreement quotation.

Response Profile

P1 Incident response time 1 hour

“P1 - Critical” means Software: errors, where business operations are no longer possible. Technology: System downtime of the production system or failure that leads to severe disabilities throughout the entire business operations.

P2 Incident response time 4 hours

“P2 - Urgent” means Software: errors, where a limited operation is possible, but there is no alternative for the affected program.

Technology: For multiple users only limited usability of a system or partial failure without significant adverse effects on general operating procedures.

P3 Incident response time 8 hours

“P3 – Important” means Software: errors, where limited operation is possible, but there are alternatives for the affected program.

Technology: Individual users or functions are affected, but there are no significant adverse effects on general operating procedures.

P4 Incident response time 24 hours

“P4 – Low” means Software: errors without direct impact or general inquiries. Technology: Functionality for individual users is limited, but available. No foreseeable adverse effects on general operating procedures.

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Note:

• Company may, in its sole and absolute discretion, agree to provide Maintenance Services for Software products that are more than two (2) Minor Releases prior than the most current Minor Release of such Software, at an additional cost.

• This SMA does not include implementation services (for example, applications training, workflow configuration, integrations, virtual machine integration, acceptance testing, project management and data migration) required as part of the installation and implementation of a Software Major Release, a Software Minor Release, or a

Maintenance Release.

• A hardware upgrade may be needed for a Software Release or Software Update. Such hardware upgrades and related costs are not covered by this Service Maintenance Agreement.

• Any maintenance or reloading of the Software or licensing that is required as a result of an external cause, such as a hardware failure, power surge, act of God, force majeure event, and an issue with software not licensed by Agfa to

Customer, will be billed at Agfa’s then-current labor rates.

• Third party changes that require re-integration testing or implementation are not covered by the maintenance agreement on the Agfa integrations. Maintenance and support for integrations are not provided under Agfa’s

Service Maintenance Agreements if such integrations were not developed by Agfa.

• Agfa has the option, with written notice to Customer, to discontinuing providing Maintenance Services under an SMA for Equipment and Software that has reached End of Service Life. “End of Service Life” (“EOSL”) means the date on which the Company will cease to provide Maintenance Services for Equipment or Software under either a SMA or on a time and materials basis. Company shall use commercially reasonable efforts to notify Customer in advance regarding EOSL dates for the products sold and licensed by Company to Customer. Company will discontinue providing Maintenance Services under a SMA for Equipment and Software that has reached EOSL. Company may, in its sole and absolute discretion, agree to include Equipment and Software products that are EOSL in a SMA, at an additional cost. If Company continues providing Maintenance Services under this SMA for a product that has reached

EOSL, Company will use commercially reasonable efforts to do so, however, spare parts for EOSL Equipment might not be available, and Software Major Releases, Software Minor Releases, and Maintenance Releases, including patches and security updates, for EOSL Software will not be available. .

• Travel and expenses incurred by Company in providing support are not included in the Maintenance Fee and will be invoiced to Customer as incurred.

• Agfa will charge Maintenance Fees for Third Party Software components required to be used with the Agfa solution

(for example, JBoss, Oracle, and Rhapsody).

• Agfa will charge applicable additional Maintenance Fees for usage of the Software exceeding the metric under which such Software was licensed (e.g., number of users, annual Exams, and/or sites).

CONFIDENTIAL

Agfa and Customer will each perform their respective responsibilities as set forth below:

*Note: If Agfa Database Managed Service is purchased by the Customer, the items marked as Agfa’s responsibility in the “Agfa DB Managed Service” column are not responsibilities of the Customer. If Agfa Patching and Endpoint Service is purchased by the Customer, the items marked as Agfa’s responsibility in the “Agfa Patching and Endpoint Service” column are not responsibilities of the Customer.

Agfa Managed

Services*

Item # Area Topic Agfa

Support Customer

Agfa DB Managed

Service

Agfa Patching and Endpoint Service

AA01

Application

Administration

Perform health checks as defined in AGFA Good Health Guide or respective product Documentation.

AA02

Application

Administration

Perform application administration and management including monitoring of system queues and workflows.

AA03

Application

Administration

Ensure users performing application administration are sufficiently trained to perform all application administration tasks.

AA04

Application

Administration Manage clinical data and procedures to correct clinical data.

AA05

Application

Administration Maintain a list of connected systems devices and relevant data flows.

AA06

Application

Administration Perform or purchase required data migration or modification services.

AA07

Application

Administration Perform or purchase in-house end-user training on the system.

AA08

Application

Administration

Work with external vendors to configure, test, maintain, and troubleshoot connections.

BR01

Backup & Recovery

Develop backup, downtime, failover/switchover and disaster recovery plans defining ownership of steps based on solution architecture, organization structure, information security, and contractual requirements.

BR02

Backup & Recovery

Participate in review of the backup, downtime, failover/switchover and disaster recovery plans.

BR03

Backup & Recovery

Develop backup procedures for the Agfa-provided system and verification of backed up data. Maintain logs of backups.

BR04

Backup & Recovery

Coordinate, manage, and perform off-site backup storage activities.

CONFIDENTIAL

BR05

Backup & Recovery

Rehearse and perform downtime and failover/switchover procedures.

BR06

Backup & Recovery

Restoration of Agfa-provided Software applications due to Software failure, based upon accepted disaster recovery plan.

BR07

Backup & Recovery

Restoration of Agfa-provided Software applications for reasons other than Software failure, based upon accepted disaster recovery plan.

DA01

Database

Administration

Perform health checks as defined in AGFA Good Health Guide or respective product Documentation.

DA02

Database

Administration

Monitor and manage the status of the database instances including database capacity/utilization, database availability, and database performance for the Agfa solution architecture.

DA03

Database

Administration Perform database startup and shutdown procedures.

DA04

Database

Administration

Define and implement a schedule of preventative maintenance of the database for the Agfa-provided solution using industry best practices and tools.

DA05

Database

Administration

Monitor database backups and verify success of archive log backups for the Agfa-provided solution.

DA06

Database

Administration

Routinely monitor and ensure file systems have required capacity for all Databases, archive logs, and backups.

DA07

Database

Administration Install approved patches to Agfa HealthCare’s database.

DA08

Database

Administration Provide corrective actions for database issues causing software system failure.

ES01

Electronic Security

Maintain the Agfa side of a Secure Remote Service Support (SRSS) or a B to B connection in the case of U.S.

government customers.

ES02

Electronic Security

Maintain the Customer side of a Secure Remote Service Support (SRSS) or approved alternate connection (such as a B to B connection in the case of U.S.

government customers) and Local administration level access to Covered Assets for Agfa Support.

ES03

Electronic Security

Configure logical security/electronic access controls for Agfa Software, databases, and applications in order to provide Agfa Support access and Customer access required to perform the functions designated as Customer’s responsibility in this Agreement.

CONFIDENTIAL

ES04

Electronic Security

Configure authentication methods, user access protocols, and manage all user access to Agfa software.

ES05

Electronic Security

Identify, evaluate, and manage vulnerabilities within the network, Equipment, and Software.

ES06

Electronic Security

Certify and communicate OS updates and patches based upon Published Agfa policy.

ES07

Electronic Security

Review Critical Vulnerabilities (CVSS 3.1 Critical 9.0-10.) as part of the Complaint process and provide feedback on corrective actions.

ES08

Electronic Security

Publish a list of third party patches and firmware available to Customer, when Agfa HC is notified by supplier.

ES09

Electronic Security

Provide secure system computing controls (hardening) on System Assets.

ES10

Electronic Security

Maintain Host Based Firewalls. √

ES11

Electronic Security

Install, maintain, and monitor anti-virus software for all systems based upon published Agfa HC policy.

ES12

Electronic Security

Remove or remediate virus, malware or ransomware.

HD01 Help Desk

Provide and maintain an incident management system for the tracking, reporting, and proactive management of issues.

HD02 Help Desk Provide and maintain a Customer help desk to provide (Level 0) Support for customer’s end users.

HD03 Help Desk Provide and maintain 24x7x365 Level 1 and 2 Support for customer’s authorized users.

HD04 Help Desk Provide 24x7x365 access to qualified Customer technical resources.

HD05 Help Desk Establish and maintain a knowledge base across all Agfa HealthCare personnel providing help desk Services.

NM01

Network

Monitoring & Management

Identify, procure, install, test, and manage all wide area network hardware and software for end user and Agfa Support access, including connectivity, firewall, and end point hardware.

NM02

Network

Monitoring & Management

Establish and maintain directory and domain name services (DNS) to support server authentication and administrative management.

CONFIDENTIAL

NM03

Network

Monitoring & Management

Maintain networking information: ports, assigning IPs, verifying network infrastructure.

NM04

Network

Monitoring & Management

Installation, configuration, management, firmware patches, and support of network infrastructure inside the DC on Covered Assets.

NM05

Network

Monitoring & Management

Monitor and manage the network environment including capacity, utilization, availability, security, and performance to meet or exceed the performance specifications provided by Agfa for the solution architecture.

PS01 Physical Security Provide physical security controls at the Data Center.

PS02 Physical Security Provide 24x7x365 on-site access to the Data Center for Agfa Support.

PS03 Physical Security Provide physical security for any Agfa-provided equipment located at Customer’s site.

SM01

Server

Management

Perform health checks as defined in AGFA Good Health Guide or respective product Documentation.

SM02

Server

Management Check server logs and remediate as needed as part of corrective actions.

SM03

Server

Management

Coordinate with and notify all parties of maintenance activities, not associated with corrective actions, which requires scheduled downtime.

SM04

Server

Management Monitor file system capacity. √

SM05

Server

Management

Configure and install operating system (OS) updates and patches on appropriate system as necessary.

SM06

Server

Management

Perform rebooting of systems as required excluding corrective actions or Agfa scheduled maintenance.

SM07

Server

Management Reinstallation or movement of hardware Covered Assets

SM08

Server

Management Monitor servers for physical hardware errors.

SM09

Server

Management

Replacement part ordering, and delivery on Covered Assets (24 hours per day, 7 days per week).

SM10

Server

Management

Manage firmware and driver updates (procure, install and validate) not associated with corrective maintenance for system failures.

CONFIDENTIAL

SL01

Software Lifecycle

Publish Policy on Software Lifecycle, Software Releases, and End of Support for software developed by Agfa HealthCare.

SL02

Software Lifecycle

Make Major Releases, Minor Releases and Maintenance Releases to Agfa- Developed Software available to Customer.

SL03

Software Lifecycle

Make Maintenance Releases to Third Party Software that Customer has acquired from Agfa that is covered by the SMA, available to Customer.

SL04

Software Lifecycle

Purchase Software Major Releases and Software Minor Releases for Third Party Software that Customer has acquired from Agfa that is covered by the SMA, and purchase any services required to install and implement such Releases.

SL05

Software Lifecycle

Perform all maintenance, support, and upgrades for customer owned and third-party software components that interface with the Agfa solutions.

SL06

Software Lifecycle

Purchase services, as required, for the installation and implementation of Software Major Releases, Minor Releases, and Maintenance Releases for Software acquired from Agfa.

S01 Storage Perform health checks as defined in AGFA Good Health Guide or respective product Documentation.

S02 Storage Procure storage and perform or purchase services required for configuration with Agfa Software.

S03 Storage

Manage firmware and driver updates (procure, install and validate) not associated with corrective maintenance for Covered Assets.

S04 Storage Monitor and control storage performance and resolve exceptions and alerts.

S05 Storage Monitor and manage the status of the storage environment (including cache):

capacity, utilization, and availability.

S06 Storage Maintain inventory of storage, volumes allocated, and naming assignments.

S07 Storage Replacement part ordering, and delivery on Covered Assets (24 hours per day, 7 days per week).

S08 Storage Provide corrective actions for system failures on Covered Assets.

SS01 Support Services Track and log all maintenance activities on Covered Assets.

CONFIDENTIAL

SS02 Support Services Provide and maintain a method for proper escalation within Customer’s management.

SS03 Support Services Follow Agfa HealthCare’s established escalation procedures for severity level adjustments and resolution.

SS04 Support Services

Cooperate with Customer to identify cause and resolve failures of system in a timely and efficient manner and report on post-mortem reviews on problems that affect critical service level standards, including root cause analysis.

SS05 Support Services

Cooperate with Agfa HealthCare to identify cause and resolve failures of system in a timely and efficient manner and if it is determined that the root cause is external to the Covered Assets, perform a post mortem.

SS06 Support Services Provide corrective actions for Software system failures on Covered Assets.

SS07 Support Services Provide corrective actions for Equipment system failures on Covered Assets.

WS01 Workstations

Perform operating system administration including but not limited to, files system management, Antivirus, firewall, local backups, full disk imaging, and hot sparing.

WS02 Workstations Perform preventive maintenance of workstation hardware and operating system.

WS03 Workstations

Manage firmware and driver updates (procure, install and validate) not associated with corrective maintenance for system failures.

WS04 Workstations Configure and install operating system (OS) updates and patches on workstations.

WS05 Workstations

Install and administer Monitor Calibration Software (such as QA Web) and perform workstations monitor calibration.

WS06 Workstations Replacement part ordering, and delivery on Covered Assets (24 hours per day, 7 days per week)