1. APPLICABILITY OF THIS EXHIBIT. The terms and conditions contained
in this Exhibit shall apply to all Software. The following terms used in this
Exhibit shall have the meaning set forth as follows: “Term” means the right to
use the Software for only a fixed term. “Perpetual” means the right to use
the Software indefinitely in accordance with the terms of the Agreement.
2. GRANT OF LICENSE. Subject to the terms and conditions set forth here,
and payment of the License Fee, Supplier hereby grants to Customer, and
Customer hereby accepts from Supplier, a perpetual nonexclusive,
nontransferable, non-assignable limited license to use the Software on the
Designated Equipment or as a cloud based solution (as specified in the
Specification) for internal purposes in accordance with this Agreement. The
foregoing license shall be granted to the Customer on a Perpetual or Term
basis, as specified in the Scope of Supply. The length of the term for all Term
Licenses shall be provided for on the Cover Page or Scope of Supply.
Customer shall not to market, sublicense, distribute, permit timeshare, or
allow any other access to the Software other than Customer's own internal
use. However, all Customer data files and patient data stored in the Software
are and shall remain the exclusive property of Customer. Nothing contained
in this Agreement gives Customer any rights with respect to new or different
computer programs developed by Supplier or its Affiliates. The Software is
licensed to Customer, not sold; no title to or other ownership interest in
Software passes to Customer.
3. SUB-LICENSE OF SOFTWARE. Where the Customer is not the EndUser, with respect to each copy of the Software that is provided to the
Customer, the Supplier hereby grants to the Customer a royalty free, nonexclusive, non-transferable, license to sublicense the Software to the EndUser, to provide a copy of the Software to the End-User solely for the EndUser's own internal use and to permit such End-User to make one (1) backup or archival copy of the Software. The Customer must enter into a written
sub-license with the End-User ("Sub-License") that at a minimum contains
terms substantially the same as, and no less restrictive than, those contained
in this Agreement in so far as they relate to the licensing of software, and
such other provisions as the Customer may, acting reasonably, advise. Upon
execution of any Sub-License with the End-User or upon upgrade of the EndUser's operating system, the Customer shall register the End-User with the
Supplier in accordance with the registration procedures established and
provided to the Customer from time to time by the Supplier.
4. AUTHORIZED USE. Customer is authorized to use the Software only on
Designated Equipment or as a cloud based solution (as specified in the
Specification) at the Site. Customer is not authorized to: (a) copy or duplicate,
or permit anyone else to copy or duplicate, any physical, magnetic, or other
version of the Software; (b) create or attempt to create, reverse engineer or
otherwise, the source programs or any part thereof from the Software; or (c)
modify the Software in any manner.
5. SOFTWARE WARRANTY. Supplier warrants that, as of the date of
Acceptance and for a period of 12 months thereafter (the "Warranty Period"),
the Software (other than Third Party Products) will in material aspects provide
the features and functionality generally described in the Specification.
Supplier's entire liability, and Customer's exclusive remedy, during the
Warranty Period will be, at Supplier's option, to attempt to correct or work
around errors or to refund the License Fee for the affected the Software. Any
refund is subject to the return of the Software. Notwithstanding the foregoing,
Supplier's warranty does not cover: (a) defects arising out of unauthorized
repair, alteration or modification; (b) defects emanating from improper
application, improper installation or operation on equipment other than
Designated Equipment; or (c) accidental damage, negligence in use,
improper storage, electrical power damage, or abnormal operating
conditions. This section provides the exclusive remedies for all claims based
on failure of or defect in the Software and this warranty is exclusive and are
in lieu of all other warranties, conditions, and guarantees whether written,
oral, implied, or statutory. EXCEPT FOR THE EXPRESS LIMITED
WARRANTIES PROVIDED IN THIS SECTION, SUPPLIER MAKES NO
EXPRESS WARRANTIES FOR THE SOFTWARE. SUPPLIER
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES FOR THE
SOFTWARE INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE TO THE EXTENT PERMITTED BY
APPLICABLE LAWS. WITHOUT LIMITING THE FOREGOING, SUPPLIER
DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE
WILL BE UNINTERRUPTED OR ERROR FREE. Any remedial steps taken
by Supplier hereunder shall not extend the applicable warranty period.
Should Supplier provide an Uptime Guarantee or Warranty for the Software
in a different exhibit the Warranty in this Section 5 shall not be applicable.
Any unauthorized modification of the Software by Customer or any failure by
Customer to implement any improvements or updates to the Software as
supplied by Supplier or its representative shall void any and all of Supplier's
obligations with respect to the Software.
6. TERM & TERMINATION. Unless terminated pursuant to this section, the
license to the Software shall either be Perpetual or for the Term specified in
this Agreement. Supplier shall have the right to terminate any license granted
or discontinue delivery of any cloud based delivery immediately upon written
notice to Customer without further obligation or liability to Customer if: (a)
Customer commits any breach of this Agreement ;(b) any sublicense,
assignment or transfer or attempted sublicense, assignment or transfer by
Customer of the Software is made without the written consent of Supplier; (c)
any transport, movement or attempted transport or movement by Customer
of the Software, or the Designated Equipment on which the Software is
installed, from the Site is made; (d) any modification or adaptation of the
Software is made or any attempt to use the Software with any products other
than the Hardware is made; or (e) any use of the Software in connection with
or on other equipment than the Designated Equipment.
7. CONSEQUENCES OF TERMINATION. Upon the termination of the
license to the Software, Customer shall immediately: (a) return the Software
to Supplier together with all reproductions and modifications of the Software
and all copies of any documentation, notes, and other materials with respect
to the Software; (b) purge all copies of the Software or any portion thereof
from all Designated Equipment and from any computer storage device or
medium on which Customer has placed or has permitted others to place the
Software; and (c) deliver to Supplier a written certification that Customer has
complied with all of its obligations under this section.