Master Services Agreement, effective as of December 30, 2011, by and between Merge Healthcare Canada Corp., a wholly owned subsidiary of the Registrant, and higi llc

If the Parties intend a provision in the SOW to take precedence over the body of this Agreement, the Parties must specifically recite in the SOW the language in the body of this Agreement over which the SOW takes precedence. Otherwise, if there is a conflict between any terms or conditions in the body of this Agreement and any terms or conditions in a SOW, the body of the Agreement shall take precedence.  The Parties acknowledge and agree that the terms and conditions of Service Provider’s invoice shall be superseded by the terms and conditions of this Agreement, and that nothing contained in any invoice shall be deemed to modify or amend any of the terms and conditions of this Agreement.  This subsection shall not be subject to modification by the terms of any SOW, but shall only be subject to modification by written agreement, reviewed and signed by legal counsel for the Parties. 

CHANGES.  Customer may request a change to the scope of any open SOW by completing a Change Order Request in the form attached to the SOW.  If a requested Change will cause Service Provider to incur additional expenses and/or time, or if Service Provider proposes other changes, then Service Provider shall respond to the Change Order Request with its proposed adjustments to the fees and/or performance schedule, based on reasonable and unavoidable costs incurred by Service Provider as a result of such Change. Service Provider must submit any proposed adjustments in writing to Customer within thirty (30) calendar days of receiving the Change Order Request. If Service Provider does not submit a proposed adjustment to Customer within the thirty (30) days then the Change will be considered accepted without adjustment. In the event Service Provider is requested to and does begin to implement the Change before both parties have signed the Agreement to Amend Statement of Work, then the Change and the proposed adjustments will be considered accepted until such time as the parties actually conclude good faith negotiations and sign the Agreement to Amend Statement of Work.  Customer may, in its sole discretion, while this Agreement is in effect, reject, cancel modify or stop any plans, schedules or work in progress being conducted by Service Provider under any applicable SOW.  If Customer takes such action, Service Provider will immediately upon being so notified use its best efforts to implement Customer's instructions, and mitigate any potential liability.  

Service Provider Costs.  All fees and costs incurred by Service Provider in performing the Work or delivering the Work Product as detailed in a signed SOW (“Service Provider Costs”), shall be payable to Service Provider in accordance with the terms hereof.  

ACCEPTANCE OF WORK. Service Provider will prepare each deliverable for review and written approval by the designated Customer representative(s). Customer shall accept or reject each deliverable in writing with fifteen (15) days of Service Provider’s presentation of notice to Customer of deliverable completion.  Acceptance shall not be unreasonably withheld. Service Provider shall promptly make at its expense the modifications necessary to correct material defects identified in writing by Customer and resubmit the deliverable to Customer, or repeat performance of the Work for acceptance by Customer.  Notwithstanding any such approval, Service Provider will be responsible for the accuracy and completeness of all Work.  

Either Party may terminate this Agreement, or all or any part of an open SOW: (i) immediately upon providing written notice to the other of such Party’s failure to fulfill any of its material obligations under this Agreement, which failure remains uncured for 10 days from the date of notice; or (ii) immediately upon the appointment of a receiver, an assignee for the benefit of creditors or any type of insolvency, except to the extent prohibited by applicable bankruptcy laws. Termination shall be effective upon expiration of any cure period or upon receipt of notice of termination, as applicable.

INTELLECTUAL PROPERTY OWNERSHIP.With respect to any Work performed under this Agreement:

Customer acknowledges and agrees that Web Services platform (the “Platform”) shall be owned at all times by Service Provider or its suppliers.  Service Provider grants to Customer a non-exclusive, non-transferable, worldwide, perpetual, royalty-free license to use the Platform in Customer’s future development projects.  The Platform is confidential information belonging solely to Service Provider and may not be licensed, distributed, transferred or disclosed to any third party except as expressly agreed to in writing by Service Provider.   Except as expressly provided for herein, Service Provider reserves all right, title and interest in and to the Platform.

Notwithstanding anything to the contrary in this Agreement: (i) as part of Service Provider’s provision of Work, Service Provider may utilize proprietary works of authorship that have been created prior to Service Provider’s performance of Work and for which no equipment, supplies or information or data of Customer was used or which have been originated, developed or acquired by Service Provider or by third Parties under contract to Service Provider (all of the foregoing, collectively, “Service Provider’s Information”); and (ii) solely for purposes of ownership as outlined in this Section 8, Service Provider’s Information shall not be deemed to be a part of the Work Product owned by Customer, but rather is and shall remain the sole and exclusive property of Service Provider.  However, Service Provider may not utilize proprietary rights related  to the application, GUI algorithms, indexes, challenges and data analytics.

Service Provider explicitly acknowledges and agrees that it does hereby grant a, worldwide, royalty free, fully paid up license for any applications created by Service Provider on behalf of Customer pursuant to the terms of any SOW created hereunder. 

"Confidential Information" includes any information related to a Party's products; services; software; hardware; manufacturing, distribution and test equipment, and their specifications, arrangement and positioning; computer and other systems; data; techniques; processes; methodologies; know how; products in planning stages or under manufacture by or for that Party; specifications; property; drawings; schematics; diagrams; dimensions; prints; reprints; information; business and financial information; equipment supplier, customer and vendor names and lists; marketing programs and plans, consumer lists or personal information, and pricing and sales information; regardless of the form (tangible or otherwise, including, oral, visual, written and electronic) in which any of such information was provided.  Work Product, and information directly related to the Work performed hereunder is deemed Service Provider’s Confidential Information. 

Each Party agrees to keep confidential the existence and terms of this Agreement and that the Parties are meeting or exchanging Confidential Information.  Each Party agrees that each person involved in performing Work hereunder shall be made aware of and shall agree in writing to the confidentiality obligations contained in this Agreement.

Upon termination of this Agreement or at the Disclosing Party’s request (whichever occurs first), Confidential Information transmitted in record-bearing media or other tangible form including electronic form, and any copies accessible by or to the Receiving Party, shall be either returned to the Disclosing Party or destroyed with such destruction certified in writing by the Receiving Party, except that the Receiving Party shall be entitled to retain a secure copy of the Disclosing Party’s Confidential Information for archival purposes only.

TRADEMARKS.  Neither Party shall have the right under this Agreement to use the name, trademarks, or trade names of the other, unless prior written approval has first been obtained or rights are otherwise granted under the terms of this Agreement or a SOW hereunder.  Any such approval shall cease upon expiration or termination of this Agreement. Each Party acknowledges and agrees that all trademarks, service marks, and trade names used by the other Party and shall remain the sole property of that Party.

PROPERTY. Any property furnished to Service Provider by Customer in connection with this Agreement will be deemed bailed to Service Provider for the mutual benefit of both Parties, and title to such property shall at all times remain in Customer. Service Provider will only use such property as required in and for the performance of Work, and will not disclose such property of Customer to third Parties. Service Provider agrees to return any and all such property at Customer’s request. Service Provider agrees to pay for all such property damaged or destroyed by it or not otherwise satisfactorily accounted for. 

Any personally identifiable information (including without limitation name, address, email address, age, telephone number, social security number, etc.) collected by Service Provider in the course of performing its Work hereunder or as part of any Work Product provided to Customer hereunder shall be collected, secured and maintained in accordance with any applicable privacy laws governing the collection, use or storage of such personally identifiable information (“Privacy Restricted Data”).   Service Provider warrants that its collection, access, use, maintenance and disclosure of Privacy Restricted Data on behalf of Customer shall comply with all applicable international, federal, state and local laws, rules and regulations as they may be amended from time to time (the “Privacy Laws”).  Service Provider shall at all times perform its obligations hereunder in such a manner as not to cause Customer to be in material violation of the Privacy Laws.

WARRANTIES AND INDEMNITIES.

Service Provider warrants that it has authored and/or created, or has acquired the right, to the extent legally permitted, for Customer to use the Work and Work Product, as set forth in the applicable SOW, including any methodology, furnished under this Agreement, and that it has not infringed copyrights or other Intellectual Property rights of third parties in furnishing such Work and Work Product, and that the use thereof by Customer as set forth in the applicable SOW will not infringe copyrights or other Intellectual Property rights of third parties.

No revision or modification of this Agreement or any SOW shall be effective unless it is in writing and signed by all Parties.

Permitted Uses and Disclosures of Protected Health Information to Perform the Agreement.  Except as otherwise limited in this Addendum, Contractor may use and disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Company or the Covered Entities as specified in the Agreement.

Other Permitted Uses and Disclosures of Protected Health Information by Contractor.  Subject to prior written authorization of  Company and except as otherwise limited in this Addendum, Contractor may disclose Protected Health Information to a third party for the proper management and administration of Contractor or to carry out its obligations under the Agreement and this Addendum and other legal responsibilities of Contractor; provided that any disclosure may occur if:  (i) Required by Law; or (ii)  the third party to whom the information is disclosed has, under a written agreement with Contractor, ensured that the Protected Health Information will be held confidentially and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the third party, and the third party immediately notifies Contractor of any instances of which it becomes aware in which confidentiality has been breached.

Responsibilities of Contractor.  Contractor hereby agrees to:

 Prevent inappropriate use and disclosure of such Protected Health Information other than as provided for in this Addendum and implement, maintain and use Administrative Safeguards, Physical Safeguards, and Technical Safeguards that appropriately protect the Confidentiality, Integrity, and Availability of the Electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of Company or the Covered Entities.

Report to Company: (i) any use and/or disclosure of Protected Health Information that is not permitted or required by this Addendum of which Contractor becomes aware, without unreasonable delay, but in no event later than one (1) business day after becoming aware of such use and/or disclosure, and (ii) any Security Incident involving electronic Protected Health Information of which it becomes aware, in the following manner:  (a) any actual, successful Security Incident will be reported to Company in writing without unreasonable delay, but in no event later than one (1) business day after becoming aware of such Security Incident, and (b) any attempted, unsuccessful Security Incident that represents a material  risk to PHI of which Contractor becomes aware will be reported to Company, upon request by Company, orally or in writing on a reasonable basis, such as through routine reports.   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.