This Agreement last Updated: October 9, 2015
PERSYST SOFTWARE MAINTENANCE AGREEMENT (PSM)
By (1) signing this Agreement, (2) accepting Persyst’s quotation or order confirmation for Persyst Software Maintenance (PSM), or (3) accepting the benefits of PSM, this Agreement becomes a legally binding contract between Persyst Development Corporation (“Persyst”) and the licensee of Persyst Software (“Licensee”) that is acquiring PSM for the Software. Persyst and Licensee may each be referred to in this Agreement as a “party” and together as the “parties.”
IF THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE NOT ACCEPTABLE, DO NOT DOWNLOAD OR OTHERWISE ACCEPT OR INSTALL ANY UPGRADES, UPDATES OR OTHER PERSYST SERVICES, AND IF PSM FEES HAVE BEEN PAID, CONTACT PERSYST FOR A FULL REFUND WITHIN 60 DAYS AFTER YOUR PAYMENT OF THE PSM FEES.
1. Definitions. The following definitions will apply to this Agreement, along with any other definitions included in the text of this Agreement.
Error means an error in coding or logic that causes the Software not to substantially function as described in the User Guide.
License Agreement means the Software License Agreement entered into between Persyst and Licensee.
PSM means Persyst Software Maintenance, including Persyst upgrades (e.g., P12 to P13), updates (e.g., P12Rev.G to P12Rev.H), support, and maintenance for the Software. Upon delivery to Licensee, all upgrades and updates shall become part of the Software and shall be subject to the provisions of this Agreement.
Software means the machine readable, object code version of Persyst’s proprietary software and related User Guide purchased by Licensee. The Software may include EMU Long-Term Monitoring, ICU Continuous Monitoring, Advanced Review, Clinical Review, Routine and Ambulatory Review, or other Persyst software products and combination suites.
User Guide means the Persyst user guide installed with the Software.
2. Term. The initial term of this Agreement shall begin on the Effective Date and shall end on the applicable annual anniversary of the Effective Date, depending on the number of years of PSM purchased by Licensee as provided in the attached Addendum A. PSM for subsequent annual terms shall be subject to signed, written agreement and the payment of the PSM renewal fees. PSM terms and conditions, including fees and payment terms, may not remain the same.
3.1Technical Representative. License shall at all times have one qualified person who will be Licensee’s appointed representative (“Technical Representative”) to conduct all telephone, email and web-conferencing communications with Persyst regarding PSM. Licensee shall promptly notify Persyst of the name and contact information for the Technical Representative and all replacements.
3.2Upgrades and Updates. From time to time at Persyst’s discretion, upgrades or updates of the Software will be developed and provided to Licensee. All upgrades, updates, and any accompanying changes to the User Guide shall be subject to the provisions of the License Agreement and this Agreement. As a condition to Persyst’s performance of this Agreement, all upgrades and updates must be installed by Licensee within a reasonable time after receipt. In no event will upgrades or updates include new products developed and marketed by Persyst as separate products.
3.3 Support. Persyst will provide technical and clinical applications support for the Software via telephone, email and web-conferencing during Persyst’s normal business hours. Licensee shall ensure that only the Technical Representative or, in his or her absence, Licensee personnel properly trained in the operation and usage of the Software will utilize the Persyst support services.
3.4Error Corrections. If Licensee determines that an Error exists in the Software during the term of this Agreement, Licensee will first follow any error procedures specified in the User Guide. If the error procedures do not correct the Error, the Technical Representative shall promptly contact Persyst via email at email@example.com, stating the defects with specificity. Alternatively, Licensee may report the Error to Persyst via telephone at 928-708-0705, provided that Licensee shall follow-up the call with an immediate email to firstname.lastname@example.org stating the defects with specificity. Upon receipt of notification of a reported Error, Persyst will attempt to reproduce and verify the Error and, if so verified, will correct the Error within the time and priority as reasonably determined by Persyst.
4. Limitations. Except as provided in Section 3, Persyst shall not have any responsibility to provide any other services for Licensee, such as (a) customization or modification of the Software; (b) technical or installation services; (c) interfaces to or interoperability with any other software, hardware or systems; or (d) remedial services for impairment caused by force majeure events, Licensee’s failure to incorporate updates or upgrades, use in combination with any hardware, operating system or software not authorized in the User Guide or in writing signed by Persyst, or other causes not under the control of Persyst.
5. Fees and Expenses.
5.1 PSM Fees.
(a)Licensee shall pay PSM fees in the amounts stated in the attached Addendum A, without deduction or offset. All other services, if any, shall be paid by Licensee at then standard rates and terms.
(b)Unless otherwise provided in Addendum A, all PSM fees shall be due and payable in advance, and no PSM will be provided before payment of the applicable PSM fees.
(c)If PSM is terminated by Licensee before the end of a multi-year PSM term, then within 30 days after the effective date of the PSM termination, Licensee shall repay the difference between the annual one-year PSM price and the annual multi-year PSM price for all years, (including partial years) in which PSM has been in effect.
(d)During a multi-year PSM, if Licensee purchases additional licenses, the PSM fee shall be increased on a prorata basis using the discounted multi-year rate, and will be invoiced yearly at the incremental cost.
(e)Only during the PSM term will Licensee have the right to transfer the Software from an existing EEG system to a newer/different model of EEG system at no additional charge.
5.2Expenses. PSM fees do not include time or expenses for travel, food or lodging incurred by Persyst, and nothing in this Agreement will require Persyst to travel to Licensee’s site. If Persyst agrees to travel or to incur other expenses on behalf of Licensee, Licensee shall pay Persyst’s then applicable standard hourly rates for consulting and support, plus all reasonable travel expenses.
5.3Non-Renewal. If for any reason Licensee does not renew PSM by entering into a new PSM Agreement and paying the applicable PSM fees, PSM services may be rendered by Persyst, at its discretion, on a time and material basis, at Persyst’s then current rates for consulting and support plus expenses and upgrade license fees. Licensee shall pay all such charges in full within 15 days after date of invoice. If for any reason PSM lapses, or if Licensee has not remained current by installing Software updates and upgrades, Persyst may require Licensee to pay for and install an upgrade of the Software as a condition to purchasing or continuing PSM.
5.4Late Payments. Commencing on the due date, all past due amounts shall bear late charges equal to 1.0% per month or the maximum rate permitted under applicable law, whichever is less. Additionally, Persyst shall have the right to withhold PSM if payments are more than 60 days past due.
5.5Taxes. Licensee shall be responsible to pay all taxes, charges, fees, levies and other assessments, if any, imposed or collected by any government entity worldwide on sales or delivery of PSM, including all sales, use, transfer, excise, privilege, and value added taxes and duties; but excluding U.S. federal and state taxes based on Persyst’s net income.
6. Limitation of Liability.
6.1 IN NO EVENT WILL PERSYST OR ITS OFFICERS, DIRECTORS OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL RESULTING FROM OR IN ANY WAY RELATED TO PSM OR THIS AGREEMENT.
6.2THE TOTAL AGGREGATE LIABILITY OF PERSYST AND PERSYST’S OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FOR ANY AND ALL CLAIMS, LOSSES, EXPENSES AND DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING ATTORNEYS’ FEES AND COSTS) RESULTING FROM OR IN ANY WAY RELATED TO PSM OR THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL ANNUAL PSM FEES MOST RECENTLY PAID BY LICENSEE.
6.3SECTION 6 APPLIES TO ANY AND ALL LIABILITY AND CAUSES OF ACTION, HOWEVER ALLEGED OR ARISING. ADDITIONALLY, SECTION 6 CONSTITUTES LICENSEE’S EXCLUSIVE REMEDY, EVEN IF THE REMEDY FAILS ITS ESSENTIAL PURPOSE. SECTION 6 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
7. Termination. Any termination of the License Agreement shall also concurrently terminate this Agreement. If Licensee breaches this Agreement and fails to cure the breach within 10 days after written notice of the breach, Persyst may immediately terminate this Agreement. Without limiting the foregoing, a breach of this Agreement shall constitute a breach of the License Agreement and vice versa. Termination of this Agreement shall not constitute an exclusive remedy. Licensee’s payment obligations and Sections 6, 7, 8, 9 and 10 of this Agreement shall survive and remain in effect after this Agreement is terminated.
8. Entire Agreement. This Agreement, including Addendum A, constitutes the complete and exclusive contract between the parties regarding its subject matter. If Licensee elects to issue any purchase order regarding PSM, the purchase order shall be for Licensee’s internal purposes only and shall not constitute contractually binding provisions or amendment to this Agreement. Other than the License Agreement, all prior and contemporaneous agreements, understandings, orders, representations and negotiations of the parties, whether verbal, written or electronic, are merged into and superseded by this Agreement. No parol or extrinsic evidence of any kind will be used to vary, contradict, supplement or add to the terms of this Agreement.
9. Construction. If an ambiguity or other question of interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof will favor or disfavor any party by virtue of authorship. Unless the context requires otherwise, (a) references to this Agreement, mean this Persyst Software Maintenance Agreement, as may be amended; (b) references to Sections mean the Sections of this Agreement; (c) the words including, such as, for example, and the like are intended to be interpreted in the broadest sense and without limitation; (d) Section headings are provided for convenience only and do not affect their interpretation; and (e) the disjunctive or includes the conjunctive and/or.
10. Other Important Provisions. This Agreement (a) does not create any agency, partnership, employment or joint venture relationship; (b) shall not be amended except in writing signed by both parties; (c) is not assignable by Licensee, in whole or in part, without the written consent of Persyst, except an assignment by merger, consolidation or sale of all or substantially all of Licensee’s equity or assets; (d) shall inure to the benefit of and be binding on each party and its successors and permitted assigns; (e) is not subject to waiver of any rights by lapse of time or by any statement, unless signed by an authorized representative of the party, and a waiver of any breach of this Agreement shall not constitute a waiver of any prior or subsequent breach; (f) may be signed in counterparts, with electronic scans and other facsimiles of original signatures binding as originals; (g) shall be construed according to the laws of the state of Arizona without reference to its conflict-of-laws principles, and the parties each irrevocably submits to the exclusive jurisdiction of the federal or state courts in Yavapai County, Arizona, USA for any legal proceedings to interpret or enforce this Agreement, for which the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs; (h) shall be construed as severable, so the court’s finding of any invalidity or unenforceability shall not affect the validity or enforceability of any other portions of this Agreement; (i) is not for the benefit of any third party other than the parties’ respective successors and permitted assigns; (j) is signed by persons authorized by each of the respective parties.