BY
INSTALLING OR USING THIS SOFTWARE, LICENSEE AGREES TO BE BOUND BY ALL OF THE
TERMS OF THIS AGREEMENT.
RECITALS
A. Perfect Health Cloud Inc., hereafter
referred to as (PHCI), is the owner of the Software and Documentation as installed
following acceptance of this agreement.
B. PHCI desires to grant to Licensee and
Licensee desires to obtain from PHCI a nonexclusive license to use, or to
deliver as a Reseller, the Software and Documentation solely in accordance with
the terms and on the conditions set forth in this Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
1.
DEFINITIONS.
1.1 “Contractual Relationship Management”
is defined as supplying any product or service in connection with the PHCI
software including, but not limited to, help desk, training, computer hardware,
software, networks, peripheral devices, printers, monitors, wireless internet
and supplies.
1.2 "Designated Equipment" shall
mean the hardware products identified on Exhibit "A" (if any) with
which the Software is licensed for use.
1.3 "Documentation" shall mean
all manuals, user documentation, and other related materials pertaining to the
Software that are furnished to Licensee by PHCI in connection with the
Software.
1.4 “End User” is defined as the final
receiver, user or benefactor of any PHCI product.
1.5 "License Fee" shall mean the
amount paid for “Office Medicine” Practice Management Software directly to PHCI
in the preceding three months.
1.6 "Software" shall mean the
computer programs in machine readable object code form listed in Exhibit
"A" (If any) attached hereto and any subsequent error corrections or
updates supplied to Licensee by PHCI pursuant to this Agreement. Exhibit
"A" may be amended from time to time by the parties in writing.
1.7 “Reseller” is defined as any agent,
company, individual or corporation who will re-sell any of PHCI’s products or
who will add value or provide service for any of PHCI’s products.
2. GRANT
OF RIGHTS.
The
License granted for Software under this Agreement authorizes Licensee on a
nonexclusive basis to use the Software on the number of primary systems of
Designated Equipment identified on Schedule A hereto for the license term set
forth on Schedule A. The Software shall be used only on such primary systems if
they are operating properly. If any primary system is down, the Software may be
used on a backup system.
3.
DELIVERY.
3.1
Software. PHCI shall deliver to Licensee a master copy of the Software licensed
hereunder in source code form, suitable for reproduction, in electronic files
only.
3.2
Documentation. PHCI shall deliver copies of Documentation electronically.
4. MODIFICATIONS.
4.1
Error Corrections and Updates. PHCI will make available to Licensee, error
corrections, bug fixes, patches or other updates to the Software licensed
hereunder in source code form to the extent available in accordance with PHCI's
release schedule for a period of ninety (90) days from the date of shipment.
4.2
Other Modifications. Licensee may, from time to time, request that PHCI
incorporate certain features, enhancements or modifications into the Software. PHCI
may, in its sole discretion, undertake to incorporate such changes and
distribute the Software so modified to all or any of PHCI's licensees.
4.3
Title to Modifications. All such error corrections, bug fixes, patches, updates
or other modifications shall be the sole property of PHCI.
4.4
Testing of Modifications, error corrections and updates. It is the duty of the Licensee to test all
modifications, bug fixes, patches or other updates to the software before using
the software with actual patients. A TEST database must be established by the
Licensee for this purpose.
5.
COPIES.
5.1
Printed Matter. Except as specifically set forth herein, no Software or
Documentation which is provided by PHCI pursuant to this Agreement in human
readable form, such as written or printed documents, shall be copied in whole
or in part by Licensee without PHCI's prior written agreement. Additional
copies of printed materials may be obtained from PHCI at the charges then in
effect.
5.2
Machine Readable Matter. Except as specifically set forth herein, any Software
provided in machine readable form may not be copied by Licensee in whole or in
part, except for Licensee's backup or archive purposes. Licensee agrees to
maintain appropriate records of the number and location of all copies of the
Software and make such records available upon PHCI's request. Licensee further
agrees to reproduce all copyright and other proprietary notices on all copies
of the Software in the same form and manner that such copyright and other
proprietary notices are originally included on the Software.
6.
LICENSE FEES AND PAYMENT.
6.1
License Fee. In consideration of the license rights granted in Article 2 above,
Licensee shall pay the License Fees or other consideration for the Software and
Documentation as set forth by PHCI. All amounts payable hereunder by Licensee
shall be payable in
Perfect
Health Cloud Inc.
6.2
Taxes and Other Charges. Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or
governmental charges imposed on the licensing or use of the Software or
Documentation hereunder, (ii) freight, insurance and installation charges, and
(iii) import or export duties or like charges.
7. PROTECTION
OF SOFTWARE.
7.1 Proprietary
Notices. Licensee agrees to respect and not to remove, obliterate, or cancel
from view any copyright, trademark, confidentiality or other proprietary
notice, mark, or legend appearing on any of the Software or output generated by
the Software, and to reproduce and include same on each copy of the Software.
7.2
No Reverse Engineering. Licensee agrees not to modify, reverse engineer,
disassemble, or decompile the Software, or any portion thereof.
7.3
Ownership. Licensee further acknowledges that all copies of the Software in any
form provided by PHCI or made by Licensee are the sole property of PHCI and/or
its suppliers. Licensee shall not have any right, title, or interest to any
such Software or copies thereof except as provided in this Agreement, and
further shall secure and protect all Software and Documentation consistent with
maintenance of PHCI's proprietary rights therein.
8. CONFIDENTIALITY.
8.1
Acknowledgement. Licensee hereby acknowledges and agrees that the Software and
Documentation constitute and contain valuable proprietary products and trade
secrets of PHCI and/or its suppliers, embodying substantial creative efforts
and confidential information, ideas, and expressions. Accordingly, Licensee
agrees to treat (and take precautions to ensure that its employees treat) the
Software and Documentation as confidential in accordance with the
confidentiality requirements and conditions set forth below.
8.2
Maintenance of Confidential Information. Each party agrees to keep confidential
all confidential information disclosed to it by the other party in accordance
herewith, and to protect the confidentiality thereof in the same manner it
protects the confidentiality of similar information and data of its own (at all
times exercising at least a reasonable degree of care in the protection of
confidential information); provided, however, that neither party shall have any
such obligation with respect to use of disclosure to others not parties to this
Agreement of such confidential information as can be established to: (a) have
been known publicly; (b) have been known generally in the industry before
communication by the disclosing party to the recipient; (c) have become know
publicly, without fault on the part of the recipient, subsequent to disclosure by
the disclosing party; (d) have been known otherwise by the recipient before
communication by the disclosing party; or (e) have been received by the
recipient without any obligation of confidentiality from a source (other than
the disclosing party) lawfully having possession of such information.
8.3
Licensee may not assign, transfer or otherwise convey the licenses granted
hereunder, especially in the case were the Licensee is a reseller who may own
the billing, service support, and the contractual relationship management of
the End User, without the prior written consent of PHCI. Licensee will not permit any other person, firm,
corporation or entity to use any part of the System or the Software licensed
hereunder. Any violation of this
provision shall cause the licenses granted hereunder to be immediately
terminated and the Licensee will promptly return all Software and System
materials and all related documentation, including any copies of any of the
foregoing, to PHCI. In
the case where Licensee is a reseller, Licensee shall cease the service
support, and the contractual relationship management of the End User and shall
immediately relinquish the service support and the contractual relationship
management of the End User directly to PHCI.
8.4
Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer or
disclosure of the Software and Documentation or copies thereof will (i) substantially diminish the value to PHCI of the trade
secrets and other proprietary interests that are the subject of this Agreement;
(ii) render PHCI's remedy at law for such unauthorized use, disclosure or
transfer inadequate; and (iii) cause irreparable injury in a short period of
time. If Licensee breaches any of its obligations with respect to the use or
confidentiality of the Software or Documentation, PHCI shall be entitled to
equitable relief to protect its interests therein, including, but not limited
to, preliminary and permanent injunctive relief.
8.5
Survival. Licensee's obligations under this Article 8 will survive the
termination of this Agreement or of any license granted under this Agreement
for whatever reason.
9. WARRANTIES;
9.1
Ownership. Except for the rights, if any of the Government of the United
States, as set forth hereinbelow, PHCI represents its
belief that it is the owner of the entire right, title, and interest in and to
Software, and that it has the sole right to grant licenses thereunder,
and that it has not knowingly granted licenses thereunder
to any other entity that would restrict rights granted hereunder except as
stated herein.
9.2
Government Rights. Licensee understands that the Software may have been
developed under a funding agreement with the Government of the
9.3
Limited Warranty. PHCI represents and warrants to Licensee that the Software,
when properly installed by Licensee and used with the Designated Equipment,
will perform substantially as described in PHCI's then current Documentation
for such Software for a period of ninety (90) days from the date of shipment.
9.4
Limitations. Notwithstanding the warranty provisions set forth in Section 9.3
above, all of PHCI's obligations with respect to such warranties shall be
contingent on Licensee's use of the Software in accordance with this Agreement
and in accordance with PHCI's instructions as provided by PHCI in the
Documentation, as such instructions may be amended, supplemented, or modified
by PHCI from time to time. PHCI shall have no warranty obligations with respect
to any failures of the Software which are the result of accident, abuse,
misapplication, extreme power surge or extreme electromagnetic field.
9.5
Licensee's Sole Remedy. PHCI's entire liability and Licensee's exclusive remedy
shall be, at PHCI's option, either (a) return of fees paid during the three
month period leading up to the event triggering the liability or (b) repair or
replacement of the Software upon its return to PHCI; provided PHCI receives
written notice from Licensee during the warranty period of a breach of
warranty. Any replacement Software will be warranted for the remainder of the
original warranty period or thirty (30) days, whichever is longer.
9.6 Disclaimer of
Warranties. Limited Warranty and Limitation of Liability.
The Company warrants that it will perform all
corrective measures and maintenance services provided for herein in a
workmanlike manner.
It is the sole responsibility of the Licensee
to maintain a valid and current data backup copy and the Company cannot be
liable for the Licensee’s ability or inability to maintain such data protection.
THE WARRANTIES SET FORTH HEREIN ARE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHICH ARE HEREBY DISCLAIMED
AND EXCLUDED BY PHCI, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND ALL OBLIGATIONS
OR LIABILITIES ON THE PART OF PHCI FOR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE USE, MAINTENANCE SUPPORT OR PERFORMANCE OF THE SOFTWARE. PHCI SHALL
NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DELAY IN FURNISHING THE
SOFTWARE AND SERVICES OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS
AGREEMENT. THE SOLE AND EXCLUSIVE REMEDIES FOR THE BREACH OF ANY AND ALL
WARRANTIES AND THE SOLE REMEDY FOR PHCI'S LIABILITY OF ANY AND (INCLUDING
LIABILITY FOR NEGLIGENCE) WITH RESPECT TO THE SOFTWARE AND SERVICES COVERED BY
THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY LICENSEE TO PHCI
UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL PHCI BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING BUT NOT LIMITED
TO DAMAGES FOR LOSS OF BUSINESS, LOSS OF BUSINESS INFORMATION OR DATA, LOSS OF
PROFITS, LOSS OF SAVINGS, LOSS OF INCENTIVES, OR THE LIKE), WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR
OTHERWISE, EVEN IF PHCI OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
10.
INDEMNIFICATION
10.1 Licensee shall indemnify and hold
harmless PHCI, their Regents, officers, agents and employees from and against
any claims, demands, or causes of action whatsoever, including without
limitation those arising on account of Licensee's use of the Software during
any time or modification or enhancement of the Software or otherwise. Licensee
shall indemnify and hold harmless against any third party claims relating to or
caused by (a) a medical error by Licensee or one of its End Users; (b) misuse
of the System by Licensee or one of its End Users; (c) breach of this Agreement
by Licensee or one of its End Users; (d) physical injury or death resulting
from a prescription or electronic medical record information issued by Licensee
or one of its End Users; (e) the training or instruction of any End User or
person to use the Software or (f) the exercise or practice of the license
granted hereunder by Licensee, sub-licensees, if any, its subsidiaries or their
officers, employees, agents or representatives.
10.2 Acknowledgement of Allocation of Risk. Licensee
acknowledges that the disclaimers,
liability limitations, indemnification
provision, and use restrictions constitute a condition precedent for the
willingness of PHCI to allow Licensee
and it’s End Users to access the System. Licensee acknowledges
that without the inclusion of those provisions,
PHCI would not agree to enter into the terms of this Agreement.
11. INSURANCE.
11.1
Licensee shall carry and maintain paid up policies for adequate products
liability insurance pertaining to use of the Prescription software, Electronic
Medical Record and any other software supporting medical treatment or decision
making, with PHCI identified as an additional insured, and Licensee shall
provide PHCI with proof of all such insurance, copies of all such policies, and
any renewals thereof at PHCI's request.
12. DEFAULT
AND TERMINATION.
12.1
Events of Default. This Agreement may be terminated by the non-defaulting party
if any of the following events of default occur: (1) if a party materially
fails to perform or comply with this Agreement or any provision hereof; (2) if
either party fails to strictly comply with the provisions of Section 9
(Confidentiality) or makes an assignment in violation of Section 13 (Non-assignability); (3) if a party becomes insolvent or admits
in writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; (4) if a petition under any foreign,
state, or United States bankruptcy act, receivership statute, or the like, as
they now exist, or as they may be amended, is filed by a party; or (5) if such
a petition is filed by any third party, or an application for a receiver is
made by anyone and such petition or application is not resolved favorably
within ninety (90) days.
12.2
Effective Date of Termination. Termination due to a material breach of Articles
2 (Grant of Rights), 5 (Copies), 7 (Protection of Software), or 8
(Confidentiality) shall be effective on notice. In all other cases, termination
shall be effective thirty (30) days after notice of termination to the
defaulting party if the defaults have not been cured within such thirty (30)
day period.
12.3
Obligations on Termination. Within ten (10) days after termination of this
Agreement, Licensee shall cease and desist all use of the Software and
Documentation and shall return to PHCI all full or partial copies of the
Software and Documentation in Licensee's possession or under its control.
13. NOTICES.
All notices, authorizations, and requests in connection with this Agreement
shall be deemed given (i) five days after being deposited
in the U.S. mail, postage prepaid, certified or registered, return receipt
requested; or (ii) one day after being sent by overnight courier, charges
prepaid, with a confirming fax; and addressed as first set forth above or to
such other address as the party to receive the notice or request so designates
by written notice to the other.
14. NONASSIGNABILITY.
Licensee shall not assign this Agreement or its rights hereunder without the
prior written consent of PHCI.
15. INTERPRETATION. This
Contract shall for all purposes be construed and enforced under and in
accordance with the Laws of the State of Florida , without regard to its
conflict of law principles, and
shall have been deemed to have been executed in Sarasota County, Florida. The parties agree that any legal action or
proceeding relating to this Contract shall be instituted in the Circuit Court
for
16. GOVERNMENT
CONTRACTS. If the Software or Documentation to be furnished hereunder are
to be used in the performance of a government contract or subcontract, the
software shall be provided on a "restricted rights" basis only and
Licensee shall place a legend, in addition to applicable copyright notices, in
the form provided under the governmental regulations. PHCI shall not be subject
to any flow down provisions required by the governmental customer unless agreed
to by PHCI in writing.
17. SEVERABILITY.
If any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remaining provisions
shall remain in full force and effect.
18. MISCELLANEOUS.
This Agreement and its exhibits contain the entire understanding and agreement
between the parties respecting the subject matter hereof. This Agreement may
not be supplemented, modified, amended, released or discharged except by an
instrument in writing signed by each party's duly authorized representative.
All captions and headings in this Agreement are for purposes of convenience
only and shall not affect the construction or interpretation of any of its
provisions. Any waiver by either party of any default or breach hereunder shall
not constitute a waiver of any provision of this Agreement or of any subsequent
default or breach of the same or a different kind.