HealthTerm Software License Agreement CAREFULLY READ ALL TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO OPENING THE SOFTWARE MEDIA PACKAGE OR INSTALLING THE SOFTWARE.BY OPENING THE MEDIA PACKAGE OR INSTALLING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND THAT YOU AND ANY ORGANIZATION OF WHICH YOU ARE AN EMPLOYEE OR REPRESENTATIVE AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT OPEN THE MEDIA PACKAGE OR INSTALL THE SOFTWARE. SOFTWARE PRODUCT LICENSE
The software and documentation (“Programs”) licensed hereunder are protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. The Programs are licensed, not sold. 1. GRANT OF LICENSE
CARECOM grants to you (“Licensee”), for each Program set forth in a CARECOM Product Schedule and delivered hereunder, a NON-EXCLUSIVE, NON-TRANSFERABLE license to use such Programs in machine readable form on the platforms specified solely for Licensee’s internal business purposes and in accordance with the terms of this Software License Agreement (“Agreement”). The Programs are licensed on either a perpetual term basis (for which one-time, perpetual license fees apply) or on an annual term basis (for which annual license fees apply for an initial minimum period and for each annual term thereafter) as specified in the Product Schedule. Annual term licenses remain in effect solely for the annual periods stated in the Product Schedule. For Programs that use fixed end-user licenses, Licensee may install and use the Programs on only one designated computer at a time. For Programs that use concurrent end-user licenses, Licensee may install and use the Programs on a network server which enables access to the Programs by users at other computers or terminals networked. The number of simultaneous users enabled is equivalent to the number of concurrent licenses purchased for that server. For Programs that run under a site license, licenses are purchased per CPU based on the number of processors on the Licensee’s server; the number of users who can access site license server Program functions correlates to the number of users of Licensee’s server application. Licensee may physically transfer the Programs from one computer to another, or electronically transfer them over a network, provided that the total number of copies in use at any given time does not exceed the total number of licenses purchased from CARECOM or its reseller. LICENSEE MAY NOT INSTALL USE, COPY OR TRANSFER THE PROGRAMS EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. 2. RESTRICTIONS ON USE
Licensee may not Rent, assign, sublicense or otherwise transfer the Programs to any third party without the prior written consent of CARECOM; Make copies of the Programs or portions thereof except solely for backup or archival purposes; Use the Programs to train persons other than Licensee’s employees and contractors performing services on behalf of Licensee; Except as authorized hereunder for Web server and browser accessible Programs, operate a service bureau or time-share arrangement which provides access to the Programs; Modify or translate the Programs or create derivative works based on all or any part of the Programs without the prior written consent of CARECOM.
Licensee may Transfer end-user license Programs to the premises of a contractor performing services on behalf of Licensee, and May transfer Web server Programs to the premises of a contractor performing application hosting services on behalf of Licensee provided such contractors agree in writing to use the Programs pursuant to the terms and restrictions of this Agreement, and the total number of licenses and Program copies in use at any given time does not exceed the total number of licenses purchased.
3. TITLE AND OWNERSHIP
All title, ownership, copyright, trademark and other proprietary rights in and to the Programs and related materials shall at all times remain with CARECOM or its Licensor & Licensee will obtain only those rights as are provided in this Agreement. 4. COPYRIGHT
Licensee acknowledges CARECOM’s and its licensors’ copyrights in and to the Programs and agrees to preserve them as required in this Agreement. Licensee may not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or in any of the Programs or media containing them. Licensee agrees to reproduce any such notices on any copies it is permitted to make. 5. TRADE SECRET; CONFIDENTIAL INFORMATION
CARECOM considers both the object code and the source code in the Programs to be unpublished confidential and trade secret information. Licensee shall not disassemble, decompile, or reverse assemble, compile or engineer the Programs, or otherwise reduce them to human readable form, and agrees to use reasonable care to prevent its employees and contractors who are permitted access to the Programs from doing so. 6. PRODUCT SCHEDULE
Prior to delivery of Programs to Licensee, CARECOM shall have prepared a Product Schedule to this Agreement which identifies the licensed Programs, perpetual or annual term basis of the license, number of copies, fixed or concurrent end-user or site license CPU license type, designated platforms, pricing and other product related information. Acceptance of such terms shall be evidenced by Licensee’s issuance of a purchase order to CARECOM. Prices are country-specific. Purchases made for more than one country or made in one country for delivery to another country must be made at the prices applicable to the destination country as identified in the Product Schedule. 7. ORDERS AND PAYMENT
Licensee agrees that the items and conditions of any purchase order it issues to order Programs shall not apply and that the terms of this Agreement shall be the only terms applicable to the license, use and provision of Programs and services. License fees are invoiced on the date on which the Programs are shipped or delivered to Licensee. An annual license is payable in advance prior to the commencement of the annual term. Annual fees are non-refundable if an annual license is terminated prior to completion of its initial minimum period or any annual term thereafter. All fees due under this Agreement shall be payable within thirty (30) days after the date of invoice. A finance charge of 1.5% per month shall apply to overdue payments until the actual date of payment. Licensee agrees to pay all freight and shipping charges. 8. TAXES
Licensee agrees to pay all sales, excise and similar taxes and all customs duties and similar charges directly or indirectly imposed on the license, delivery, use or maintenance of the Programs, without deduction against the fees payable to CARECOM under this Agreement. Licensee is not liable for taxes imposed on CARECOM’s income. 9. SUPPORT SERVICES
Maintenance for Programs is provided by CARECOM or its resellers. If the license purchased is a perpetual license, Licensee is required to purchase software maintenance for an initial twelve (12) month period commencing on the date the Programs are shipped or delivered, with annual fees payable in advance. Maintenance shall be considered automatically renewed and annual maintenance fee billing will continue for subsequent annual periods unless Licensee gives CARECOM or its reseller written notice of termination of maintenance at least sixty (60) days prior to the end of the then current annual maintenance term. If the license purchased is an annual license, software maintenance is included in the annual license fee. Maintenance consists of (a) software releases, including major and minor versions and update releases to the Programs; (b) access to CARECOM’s online support Web site to report and track management of product issues, obtain product technical information and software downloads as made available for general distribution (Web access is available 24/7 except for periods of site maintenance); and (c) e-mail and telephone support (telephone support is available during CARECOM’s normal business hours, GMT+01:00, with country-specific hours as identified in the Technical Product Support Guide). Maintenance will be provided for up to two (2) Minor Releases prior to a current Release (i.e. 3.6 to 3.1). 10. LIMITED WARRANTIES
CARECOM warrants to Licensee for a period of ninety (90) days from the date of receipt of the Programs that (a) the media on which the Programs are recorded are free from defect in material and workmanship under normal use and service, and (b) when correctly installed and used on a designated platform the Programs will conform in all material respects to CARECOM’s published product documentation. CARECOM’s sole responsibility and Licensee’s exclusive remedy under these warranties is that CARECOM will, at its option, (a) use reasonable efforts to correct documented errors in the Programs that are reported to it within the warranty period; or (b) if such errors cannot be corrected after reasonable efforts by CARECOM to do so, refund the license fee paid for the relevant Programs upon return of the Programs. CARECOM does not warrant that thePrograms will operate on an uninterrupted or error free basis, that all errors will be corrected, or that the Programs will operate in all combinations Licensee may select. CARECOM’s warranties are not transferable and do not apply insofar as (a) the Programs are subjected to misuse, neglect or accident (b) claims result from acts or omissions caused by persons other than CARECOM, material or software not provided by CARECOM, or from Licensee or third party modifications to the Programs, or (c) the Programs used by Licensee do not include all releases available from CARECOM Licensee accepts responsibility for selection of the Programs, their use and the results obtained therefrom, including establishing adequate backup to prevent the loss of data in the event of a malfunction of the Programs. THESE WARRANTIES ARE THE ONLY WARRANTIES GIVEN BY CARECOM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CARECOM SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. INCLUDING THE IMPLIED WARRANTIES OF NONINFRINGEMENT. MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THOSE ARISING BY CUSTOM OR TRADE USAGE. THESE LIMITED WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. 11. LIMITATION OF LIABILITY
CARECOM’s and its licensors’, representatives’ and resellers’ total liability (whether in contract, tort or any other theory of liability) arising out of or in connection with this Agreement; the Programs, any output of the Programs or failure of the Programs to operate in accordance with the applicable product documentation, the provision of or failure to provide software maintenance or other services hereunder or the breach or default by CARECOM of any provision of any service or license agreement with Licensee relating to the Programs shall be limited to the amount actually paid to CARECOM in the twelve months prior to the date of the claim. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CARECOM AND ITS LICENSOR’S, REPRESENTATIVES AND RESELLERS BE LIABLE FOR SPECIAL INCIDENTAL INDIRECT, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM LOSS OF USE. LOSS OF DATA, LOSS OF REVENUES OR PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, (INCLUDING THE PERFORMANCE OF THE PROGRAMS OR CARECOM’S PERFORMANCE OF SERVICES) OR ITS TERMINATION, EVEN IF INFORMATION MAPPING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROGRAMS MAY BE IMPLEMENTED, CONFIGURED AND USED FOR PROCESSING MANY DIFFERENT KINDS OF INFORMATION; IN NO EVENT SHALL INFORMATION MAPPING HAVE ANY LIABILITY FOR CLAIMS OR DAMAGES OF ANY KIND OR NATURE RESULTING FROM THE PARTICULAR KIND OF INFORMATION A LICENSEE PROCESSES OR FROM A PARTICULAR IMPLEMENTATION OR CONFIGURATION THAT IS NOT IN ACCORDANCE WITH INFORMATION MAPPING DOCUMENTATION. 12. TERM AND TERMINATION
This Agreement remains in effect until termination by (a) mutual agreement of the parties; (b) if the license purchased is an annual term license, at expiration of the initial minimum period or any annual term thereafter or (c) CARECOM written notice to Licensee specifying Licensee’s failure to comply with any of the terms of this Agreement and such failure is not cured within fifteen (15) days of notice. Upon any such termination Licensee shall return the Programs (including all copies) to CARECOM and it agrees to certify in writing to CARECOM that the original and all copies of the Programs have been returned to CARECOM 13. U.S. GOVERNMENTS ENTITY RIGHTS
The Programs are commercial software and are provided with restricted rights. The Programs are a “commercial item” as that term is defined in 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. It 12.212, and are “commercial computer software” as defined in 48 C.F.R. 252.227-7014, and amendments, Consistent with 48 C.F.R. 227.7202-I through 227.7202-4, if Licensee is a U.S. Government entity or any contractor thereof, the Programs are provided in accordance with the terms of this commercial computer software license Agreement and are subject to the restricted rights provisions of FAR 52.227-19, FAR 52.227-14 and similar agency clauses, including the restricted rights provisions of the DFAR clauses applicable to commercial computer software and documentation. Licensee agrees that it shall have only those rights and shall be subject to all restrictions set forth in this Agreement. 14. EUROPEAN SOFTWARE DIRECTIVE
If European Directive 91/250/EEC applies to Licensee’s use of the Programs and Licensee wishes to obtain information necessary to achieve interoperability of independently created software with the Programs as permitted under Article 6 of the Directive, Licensee must notify CARECOM in writing, specifying the information needed and its purpose. If CARECOM reasonably determines that Licensee is entitled to such information, CARECOM shall, at its option, either provide the information or allow Licensee to reverse engineer the Programs solely to the extent indispensable to obtain such information. CARECOM may charge Licensee a reasonable fee for making available the requested information unless such a fee is prohibited under the Directive. 15. GOVERNING LAW
This Agreement shall be governed in all respects by the laws of the Kingdom of Denmark, without giving effect to principles of conflicts of law. Licensee consents to the jurisdiction of the court in Copenhagen, Denmark to settle any claim, action or controversy arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. 16. GENERAL
If any portion of this Agreement is found invalid or unenforceable, the balance of this Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstance it shall nevertheless remain applicable to all other persons and circumstances. Except for the payment of money, neither party will be liable to the other for any failure to perform or delay in the performance of its obligations caused by circumstances beyond its reasonable control. Licensee agrees that it will not export the Programs or any materials related to the Programs, directly or indirectly, in violation of any U.S. export control law or regulation. Licensee consents to CARECOM’s use of Licensee’s name in a customer list, press announcement, annual report or similar material in print or electronic form. If any open source software (“OS Software”) is included in Programs delivered hereunder, such OS Software is identified in the notices which accompany the Programs. Unless otherwise stated in the Product Schedule, (a) the warranty and support services provided under this Agreement apply to such OS Software and are provided by CARECOM alone and not by the original licensor, and (b) the original licensor of the OS Software provides it on an “as is” basis and without any liability whatsoever to Licensee. If at Licensee’s request CARECOM furnishes to Licensee certain third party software products (“TP Software”) for use with the Programs, such TP Software will be indicated on the Product Schedule. All such TP Software is licensed to Licensee pursuant to the terms of either (a) the third party’s software license agreement, or (b) an addendum to this Agreement, which addendum is hereby incorporated into and made a part of this Agreement. Unless otherwise stated on a Product Schedule, technical support for TP Software is provided by CARECOM on a first-level, call-in basis consistent with the applicable third party’s support policies in effect at the time the services are provided. CARECOM is providing the TP Software without warranties on an “AS IS” basis, and CARECOM disclaims all liabilities and damages of any kind or nature with respect to the 1P Software or its use by Licensee. No delay or failure of CARECOM to exercise any right provided herein shall in any way affect its right to enforce that right or any other right under this Agreement at a later time. No waiver shall be effective unless in writing signed by CARECOM. This Agreement supersedes all prior agreements, arrangements and understandings between the parties, including the terms of any purchase order or other ordering document issued for the Programs, and constitutes the entire agreement between the parties relating to the subject matter hereof. None of the terms and conditions of this Agreement may be added to, modified or superseded except in a written instrument signed by both parties. LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. Questions concerning this Agreement should be directed in writing to: CareCom A/S,
Lautrupvang 8
DK-2750 Ballerup
Denmark or to the authorized reseller in Customer's country. Web address: www.carecom.eu
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