1. SOFTWARE

1. 1. License Grant.  Company hereby grants to Customer, and Customer hereby accepts from Company, a non-exclusive, non-sublicensable, non-transferable license (the “License”) to use the software described on the Order Form or Order Forms attached hereto, including related documentation described thereon (“Documentation”) and all Updates thereto as may be provided pursuant to this Agreement (collectively, with respect to each offering made available and licensed to Customer, the “Software”).  Company shall provide to Customer all Documentation required to allow Customer to use and operate the Software in accordance with, and subject to, all of the terms, conditions, and provisions of this Agreement.

   2. Ownership.  As between the parties, Company shall retain all rights, title, and interest in and to the Software, Documentation, and support services, including all object code and source code, all modifications, updates, maintenance releases, derivative works or improvements, and all related intellectual property rights.  Customer unconditionally and irrevocably assigns to Company its entire right, title, and interest in any intellectual property rights that Customer may have currently or in the future relating to the Software or Documentation, including any derivative works or patent improvement rights, however, held or acquired.

   3. Delivery and Installation.  On the later of: (i) the last date signed on the Order Form, or (ii) five (5) business days from the date of the execution of this Agreement, Company shall deliver to Customer the Software and the appropriate Documentation, including, without limitation, a license key (the “License Key”), required to install and operate the Software. The Software is licensed and not sold and will be deemed delivered to Customer upon delivery of download and installation instructions.

   4. Use Limitations.  The Software may be used by the number of users, a number of devices, or servers as set forth on the Order Form, subject to the payment of applicable License Fees (as defined in Section 3.1).  Company shall enter into an end-user agreement with each of Customer’s users, to be entered into electronically at the time that each such end user activates the Software on the end user’s computer or starts using the Software.

   5. Restrictions.  Customer shall not (and shall not allow any end user or third party to) (i) decompile, disassemble, or otherwise reverse engineer the Software or attempt to discover any source code or underlying ideas or algorithms of the Software, (ii) remove any product identification, copyright or other notices embedded within the Software, (iii) modify or create a derivative work of the Software (except as otherwise expressly authorized by Company in writing), (iv) remove or export any Software from the United States in violation of applicable laws or regulations, (v) relicense, provide, lease or lend the Software to any third party, (vi) copy the Software or any portion thereof except as provided herein, or (vii) disclose any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.

   6. Copies.  The customer may make such additional copies of the Software as it may deem necessary for its use, backup, and disaster recovery purposes.

   7. Security Measure Disclosure.  The Software may contain security features that prevent the unauthorized or illegal use of the Software. Customer acknowledges and agrees that Company may use these features and other lawful measures to verify Customer’s compliance and to enforce Company’s rights under this Agreement. Customer further acknowledges and agrees that Company may, from time to time at Company’s sole discretion, gather Customer’s technical, usage, and other related information without disruption to Customer’s use and for the sole purpose of improving the Software’s performance, developing maintenance releases, and developing new versions and updates. Company warrants that all such gathered information will be free of personally identifiable, proprietary or other sensitive information.

2. INSTALLATION, TESTING, AND ACCEPTANCE OF SOFTWARE AND UPDATES

Except as otherwise provided in an Order Form, Customer shall have a period of ten (10) days from the Company’s delivery of the License Key in which to perform user acceptance testing on Company’s Software and to notify Company in writing if such Software is found not to be in material compliance with applicable specifications. If Customer does not furnish Company a “Notice of Acceptance” or notice of material defects found (if any) within ten (10) days of receipt of the License Key, the Software shall be deemed accepted. Where material defects are found, Company, at its expense, shall correct such defects within ten (10) days from receipt of the Customer’s notification and notify Company that such corrections have been made.  If the Software still does not function in conformity with the specifications and related Documentation to Customer’s reasonable satisfaction, Customer may in its sole discretion and in addition to any other rights and remedies available to it under this Agreement or applicable law or at equity, (i) immediately terminate this Agreement without any further obligation or liability of any kind; or (ii) require Company to continue to attempt to correct the deficiencies until the Software functions to Customer’s reasonable satisfaction as set forth above.

1. FEES AND PAYMENT TERMS

   1. Fees.  The fees to be charged by Company for the License granted hereunder (the “Fees”) are as set forth on the Order Form applicable to each Software offering made available and licensed to Customer.  No Fees shall be refundable after the Customer accepts the Software in accordance with Section 2 above.  All Fees are exclusive of taxes, duties, and other similar assessments. Customer is responsible for all sales, service, use, exercise, and all other similar taxes, duties, and charges of any kind imposed by any governmental, federal, state, local, or regulatory authority on any amounts payable by Customer hereunder, which amounts shall not be reflected on any Order Form (but may, for the avoidance of doubt, be included on invoices submitted by the Company). Notwithstanding the foregoing, Company is solely responsible for its own income tax.

   2. Invoicing and Payment Terms.  Customer shall pay all undisputed amounts due by Customer hereunder within thirty (30) days after the date of the invoice.

   3. Late Fees.  The customer shall pay a late fee of one percent (1%) per month or the highest rate allowed under the law, whichever is lower, on any overdue amounts.

   4. Review.  During the term of this Agreement and for one (1) year thereafter, Customer grants Company the right, at Company’s expense and no more than once per year, after providing to Customer not less than ten (10) days prior written notice, to examine Customer’s records and other information relating to the Customer’s use of the Software, provided that such examination is conducted in a manner that is not disruptive to Customer’s business. If this examination reveals that Customer has not paid any Fees due, then Customer agrees to promptly pay such fees. If the underpaid Fees exceed five percent (5%) of the Fees actually paid for the applicable period, then the Customer shall also pay the Company’s reasonable costs of conducting the examination. Additionally, at Company’s written request, not more frequently than annually, the Customer shall furnish the Company with a signed certificate verifying that Customer is using the Software within the terms of this Agreement.  

2. REPRESENTATIONS, WARRANTIES, AND INDEMNITIES

1. Company’s Warranties.  Company hereby represents and warrants to Customer as follows:

1. Power and Authority.  Company has the full legal right and corporate power and authority to enter into and perform all of its obligations under this Agreement and to comply with all terms and conditions of this Agreement.

2. Software Performance Warranty.  The Software, and the media it is contained upon, shall be in material conformity with the warranties herein and in accordance with this Agreement and the Documentation.  THE COMPANY IS PROVIDING THE SOFTWARE AND SERVICES “AS IS” AND “AS AVAILABLE.” COMPANY DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE. EXCEPT AS SET FORTH HEREIN, COMPANY DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE, SUPPORT SERVICES, OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

3. No Viruses, Approvals, or Security.  In addition, the Company warrants that (i) the Software shall not contain (x) any software routine, code, or instruction, hardware component, or combination of the foregoing (1) which permits unauthorized access to Customer’s IT network or Customer’s Confidential Information or (2) can disable, delete, modify, damage or erase software, hardware or data, or (y) any malicious code that can disable, delete, modify, damage or erase software or data; and (ii) the Software has received all required third party approvals, consents, permits, authorizations, including, without limiting the foregoing, all requisite approvals from all regulatory or governmental agencies to allow Customer and Company to enter into and perform this Agreement and use the Software as intended. 

4. Personnel.  Each of the Company’s personnel assigned to perform services under this Agreement shall have the proper skill, training, and background so as to be able to perform in a competent and professional manner, consistent with generally accepted industry standards, and all work hereunder will be so performed.

5. Intellectual Property.  The company represents and warrants that it is the owner or licensee of the Software, that it has the right to convey the License, and that the Software is, to Company’s knowledge, free from any claim of infringement of any copyright, trademark, trade secret, patent or other proprietary rights of any third party.

6.  Indemnity. Company shall indemnify, defend and hold Customer and its affiliates, and its and their directors, officers, partners, principals, employees and agents, harmless from and against any and all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees) incurred as a result of any third party claim that arises out of Company’s breach of its representations, warranties or other obligations under this Agreement or is due to the negligent acts, omissions or intentional acts of Company, its employees, agents, consultants, or subcontractors.  Company shall control such defense and all negotiations relative to the settlement of any such claim, and further provided that any settlement intended to bind Customer shall not be final without Customer’s written consent, which shall not be unreasonably withheld.  Without limiting the foregoing indemnity, Customer may elect to be represented by counsel of its own choosing. Customer shall promptly provide Company with written notice of any claim which Customer believes falls within the scope of this Section. However, Customer’s failure to provide prompt notice to Company shall not relieve Company of its indemnification obligations under this Agreement except to the extent that Company is materially prejudiced thereby. If Customer is enjoined or otherwise prohibited from using the Software, Company shall, at its expense, (i) procure the right to continue using the Software, (ii) substitute a non-infringing version of the Software of equal or better performance, or (iii) if neither of the foregoing alternatives is available, then Customer shall have the right to terminate this Agreement, in which case Company shall refund to Customer a pro rata portion of the License Fees paid by Customer hereunder, based on the remaining portion of the current term for licenses with other than a perpetual term and based on a five-year amortization schedule for perpetual licenses.  

1. Customer’s Warranties.  Customer hereby represents and warrants to Company as follows:

1. Export Regulation.  Customer acknowledges that the Licensed Software may be subject to applicable United States export Laws, including the United States Export Administration Act and its associated regulations. Customer agrees to comply with provisions of such export laws. Compliance may include, but is not limited to, obtaining any and all necessary export license or other governmental approval. Customer shall not itself or permit any third party to directly or indirectly export, re-export, or release the Software, or use the Software, in any country prohibited or restricted under United States export laws.

2. Government Notice. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

3. Indemnity. Customer agrees to indemnify, and hold Company and its affiliates, employees, directors, officers and agents harmless against any liability from and against any third party suit or claim made or proceedings brought against Company arising directly or indirectly out of (a) Customer’s or its employees’ or agents’ negligence, willful misconduct; (b) breach of any term of this Agreement and/or any ordering document, or (c) injury to person (including death) or damage to property caused by Customer, its employees or agents.

1. SOFTWARE MAINTENANCE AND SUPPORT

   1. Software Maintenance.  At no charge during the term of this Agreement, Company shall provide support and maintenance services in connection with the Software (“Software Maintenance”) as further described in this Section 5.1 and Schedule A.  Company shall continue to make Software Maintenance and Support available to Customer at all times while this Agreement is in effect and all Software Maintenance and Support fees due to Company under the applicable Order Form have been paid by Customer.  Company shall (i) diagnose, verify and correct or replace any non-conformities, defects, errors, malfunctions or bugs (individually, an “Error” and collectively, “Errors”) in the Software promptly after Customer notifies Company of an Error or Company discovers an Error, (ii) provide email support for the Software, consisting of explanations of program methodology, input/output interpretations, documentation problems, Error reporting, use of the Software, installation instructions and network operations, and (iii) provide to Customer all Updates, as and when the same are made generally available to end users by Company, and updated Documentation, if applicable.  All such Updates shall be deemed to be Software for all purposes of this Agreement.  Company shall furnish as many qualified and knowledgeable representatives as are necessary to provide Software Maintenance, and such representatives shall use continuous best efforts to provide such services.  Company’s obligation hereunder will not be deemed to affect any other liability which it may have to Customer.

   2. Updates and Corrections.  As part of Software Maintenance, Company shall promptly make available to Customer all modifications, updates, enhancements, corrections and new version releases to the Software (collectively, “Updates”).  Customer shall have the right to refuse to utilize any such Update (subject to the terms set forth on Schedule A).  

2. TERM AND TERMINATION

   1. Term.  The term of the License shall be a period of twelve (12) months from the Effective Date.  If the Agreement has not been terminated prior to expiration, a new renewal term shall automatically begin for subsequent consecutive twelve (12) month terms (each, a “Renewal Period”) so long as (a) Client pays the Fees within thirty (30) days of invoice; and (b) Company is still offering Service in respect of such Software.    

   2. Termination.  Customer may terminate this Agreement without cause upon sixty (60) days’ written notice prior to the end of the then-current term.  Each party shall have the right to terminate this Agreement for material breach by the other party if such material breach is not cured within thirty days’ (30) written notice thereof to the breaching party.  

3. CONFIDENTIALITY AND PROPRIETARY RIGHTS

   1. Confidential Information.  The parties hereby acknowledge and agree that each party shall be provided with or given access to or learn information, verbally or in written or other tangible form, that is proprietary and confidential to the other party (“Confidential Information”) including, without limitation, information relating to a party’s software, management, business operations and plans, organizational structure, policies, procedures, business relationships, patients and clients.  The recipient shall employ the same degree of care in preventing the disclosure of the Confidential Information to a third party (or parties) as it uses with regard to its own confidential information of similar importance, provided that in no event shall the recipient employ less than a reasonable degree of care.  The recipient shall disclose Confidential Information of the other party only to third parties who have a need to know the Confidential Information for purposes of performing or exercising the rights granted under this Agreement and shall use Confidential Information of the other party only for such purposes.  The term “Confidential Information” shall not include, and neither party shall have any obligation of confidentiality with respect to, information to the extent that it (a) is in, or comes into the public domain (except as a result of a breach of this provision); (b) is received without obligation of confidentiality by the recipient from a third party not under an obligation of confidentiality with respect thereto; or (c) is independently developed by the recipient without access to the Confidential Information of the discloser.  Recipient may, if ordered to do so by a regulatory authority with jurisdiction over it or if it is required to be disclosed by the recipient under operation of law, court order, or other valid legal process, disclose Confidential Information of the other party to such regulatory authority or other recipient, provided sufficient written notice is given to the discloser prior to such disclosure to enable discloser to seek an order limiting or precluding such disclosure. If the recipient becomes aware of any unauthorized use or disclosure of the discloser’s Confidential Information, the recipient will promptly notify the discloser and reasonably cooperate with the discloser’s efforts to investigate such unauthorized use or disclosure.  Notwithstanding any other provisions in this Agreement, the recipient is obligated to protect any Confidential Information that constitutes as trade secrets under any applicable law until such Confidential Information ceases to qualify for trade secret protection by operation of law.  

   2. Return of Confidential Information.  Promptly upon termination of this Agreement, or at any time upon discloser’s request, recipient shall promptly, at discloser’s option, either return or destroy all or any part of the Confidential Information, and all copies thereof and other materials containing such Confidential Information, and recipient shall certify in writing its compliance with the foregoing.

   3. Injunctive Relief.  The parties acknowledge that in the event of a breach of this Section, damages may not be an adequate remedy and either party shall be entitled to seek injunctive relief to restrain any such breach, threatened or actual, in addition to any other rights and remedies available to such party under this Agreement or at law or in equity.

   4. Publicity.  Customer grants Company a limited, non-exclusive right to place Customer’s trademarks and logos on Company’s website and marketing materials solely for the purpose of identifying Customer as a customer of the Software.

4. LIMITATION OF LIABILITY

   1. LIMITATION OF CONSEQUENTIAL DAMAGES.  IN NO EVENT SHALL CUSTOMER, ANY AFFILIATE OF CUSTOMER, OR COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

   2. GENERAL LIMITATION.  IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO CUSTOMER IN ANY ONE OR MORE CAUSES OF ACTION FOR ANY AND ALL DAMAGES INCURRED RELATING TO THIS AGREEMENT OR THE SOFTWARE EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER.  

5. AUDIT

Upon thirty (30) days’ prior notice, Company may request, and Customer must provide, a Software-facilitated system-generated report (the “System Report”) verifying Customer’s Software deployment to end users. Customer acknowledges that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Company deployment verification, Customer will prepare and provide to Company within the thirty (30) day period an accurate Company deployment verification report for the Software. Company will only request the System Report (or Customer’s prepared Software deployment verification report) one time per year and will not unreasonably interfere with the conduct of Customer’s business. 

1. GENERAL

   1. Assignment.  Neither party shall assign this Agreement in whole or in part without the prior written consent of the other party, except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. 

   2. Subcontracting.  Company may not subcontract all or any portion of the Software Maintenance services without the prior written consent of Customer. Company shall remain fully responsible for the performance of the Software Maintenance services by any such permitted subcontractor, such subcontractor’s compliance with all terms of this Agreement, and for the acts and omissions of such subcontractor’s personnel. All employees, consultants and agents of Company, while on the premises of Customer, shall comply with Customer’s rules, regulations, and policies concerning such matters as operating procedures, security requirements, working conditions, working hours and holidays.

   3. General.  All notices required or permitted to be given by one party to the other under this Agreement shall be sent by certified mail, return receipt requested, to the parties at the respective addresses first set forth above or to such other address as the party to receive the notice has designated by notice to the other party in accordance with this Section.  Notice shall be deemed given when actually received. The provisions of Sections 4, 7, 8, and this Section 10 shall survive any termination of this Agreement. This Agreement, and any claim, controversy or dispute arising under or related to this Agreement, the relationship of the parties and/or the interpretation and enforcement of their respective rights and obligations, shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of law. The parties hereto agree to the exclusive jurisdiction of the courts located in the State of Florida and the exclusive venue of Miami-Dade County. If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions of this Agreement will not be impaired thereby. The failure by any party to exercise any right or remedy provided for herein will not be deemed a waiver of any right or remedy hereunder. Unless expressly otherwise provided herein, no modification of or amendment to this Agreement shall be valid unless in writing and signed by both parties. The rights and remedies of Customer set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents, and neither party shall have the power the bind the other party. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. The section and subsection headings used in this Agreement are for convenience of reference only and are not to be considered in construing or interpreting this Agreement.  Neither party will be liable to the other by reason of failure or delay in the performance of this Agreement if the failure arises out of any circumstance beyond such party’s reasonable control, including acts of God, flood, fire, natural disaster, war, terrorism, invasion, riot, civil unrest, embargos, national or regional emergency, strikes, labor disruptions, law changes, or power or telecommunication interruptions or shortages. The party failing or delaying in performance of this Agreement due to circumstances beyond their control must give prompt written notice to the other party stating the estimated length of time the occurrence is expected to continue. Either party may terminate this Agreement if such uncontrollable circumstance continues for longer than thirty (30) days.