This Agreement last Updated: October 9, 2015
Persyst Development Corporation
SOFTWARE LICENSE AGREEMENT
By (1) signing this Agreement, (2) accepting Persyst’s quotation or order confirmation; (3) registering the Software with Persyst; or (4) subscribing for or renewing PSM (as defined below), this Agreement becomes a legally binding contract between Persyst Development Corporation (“Persyst”) and the party acquiring the license to use the Software (“Licensee”). 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 REGISTER THE SOFTWARE, DESTROY ALL COPIES OF THE SOFTWARE, AND IF A LICENSE FEE HAS BEEN PAID FOR THE SOFTWARE, CONTACT PERSYST FOR A FULL REFUND WITHIN 60 DAYS AFTER RECEIPT OF THE SOFTWARE.
1. Definitions. The following definitions will apply to this Agreement, along with any other definitions included in the text of this Agreement.
Computer means a physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions. Examples include desktop computers, laptops, tablets, emergency mobile units, patient monitoring devices and other hardware products capable of operating software applications, but excluding virtual devices, servers and similar products unless expressly included in the type of license paid for by Licensee..
Evaluation means the 30-day period during which Licensee is authorized to run the Software for the sole purpose of evaluating Licensee’s potential purchase of a paid Software license. Under no circumstances will the Evaluation period extend beyond 30 days except with prior written consent signed by an authorized representative of Persyst. The 30-day period begins when the Evaluation access key for the Software is delivered to Licensee.
PSM means Persyst Software Maintenance, including Persyst upgrades (e.g., P12 to P13), updates (e.g., P12Rev.G to P12Rev.H), support, and error corrections 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. The terms and conditions of PSM are stated in, and subject to, the Persyst Software Maintenance (PSM) Agreement posted at the Persyst website, http://persyst.com/____________.
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. Ownership of the Software. The Software is owned by Persyst. The Software and all copies of the Software are licensed, not sold, and Licensee receives no title or ownership. The structure, organization and source code of the Software are the valuable trade secrets and confidential information of Persyst. The Software is protected by law, including copyright and trade secret laws. Except as expressly stated in Section 3, Licensee receives no rights in the Software.
3. Grant of License.
3.1 Persyst grants to Licensee a nonexclusive, perpetual license to use the Software in the permanent memory of a single Computer, either standing alone or on a single network Computer server, solely for medical services or medical research, by hospitals, clinics, academic medical organizations, and third party medical service providers. The foregoing license is subject to Licensee’s continuous compliance with this Agreement, including full payment for the applicable license for each Computer on which the Software is used.
3.2 Despite the provisions of Section 3.1, if Licensee receives the Software without registering with Persyst, Persyst grants to Licensee a nonexclusive, revocable, nontransferable license to use the Software on a single Computer solely for the Evaluation of Licensee’s potential purchase of a paid Software license. If Licensee elects to purchase a license for the Software before the expiration of the Evaluation period, this Evaluation license will automatically convert to a Section 3.1 license upon Licensee’s registration of the Software with Persyst. OTHERWISE, THIS EVALUATION LICENSE AND AGREEMENT, AND LICENSEE’S RIGHT TO ACCESS AND USE THE SOFTWARE, AUTOMATICALLY TERMINATES AT THE END OF THE 30-DAY EVALUATION. FOR CLARITY, ANY ACCESS KEY PROVIDED FOR THE EVALUATION SHALL EXPIRE, AND THE SOFTWARE SHALL AUTOMATICALLY BECOME NON-OPERATIONAL AT THE END OF THE EVALUATION PERIOD.
3.3 Licensee warrants and represents to Persyst that Licensee provides medical services or performs medical research as a hospital, clinic, academic medical organization, or third party medical services provider.
4. Restrictions and Obligations
4.1 Licensee shall not copy the Software, except that Licensee may (a) make reasonably necessary copies of the Software solely for backup and archival purposes, and (b) transfer the Software to a single hard disk provided Licensee keeps the original copy solely for backup or archival purposes. Licensee may not copy the User Guide. Licensee agrees that a transfer of the Software to a different Computer of Licensee requires the written consent of Persyst and a potential upgrade of the Software.
4.2 The Software is transferable only with the signed written consent of an officer of Persyst, which consent will not be unreasonably withheld or delayed.
4.3 To the maximum extent permitted under applicable law, Licensee agrees that it shall not: (a) modify, create derivative works from, distribute, or sublicense the Software; (b) decompile, disassemble, reverse engineer or otherwise attempt to derive any of the source code or other non-public features, elements or data of the Software; (c) probe, test, tamper with, defeat, disable or circumvent any encryption, security measure or other protective mechanism related to the Software; (d) use the Software for service bureau or time-sharing purposes, or in any other way allow third parties to exploit the Software, with or without charge; or (e) enable, encourage or allow anyone to do any of the forgoing.
4.4 Licensee shall comply with all local, state, federal or foreign laws applicable to Licensee in connection with its use of the Software including the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended. Without limiting the foregoing, Licensee shall not at any time transmit to Persyst any Personally Identifiable Information, Limited Data Set or other Protected Health Information requiring compliance with HIPAA. Licensee agrees to promptly report to Persyst any Security Incident that directly pertains to Persyst or the Software after Licensee becomes aware of such Security Incident. All capitalized words and phrases in this paragraph will have the meanings ascribed in HIPAA.
4.5 Licensee shall not export any Software or technical data acquired from Persyst to countries outside the United States in violation of United States export laws or regulations.
4.6 Licensee shall not at any time remove or modify any proprietary markings in the Software.
5. Restrictions on Evaluation License. The following restrictions will apply to all Evaluation licenses, in addition to the restrictions described in Sections 4.3, 4.4, 4.5 and 4.6:
5.1 Licensee shall not copy or export the Software or the User Guide.
5.2 Licensee shall use the Results for Evaluation purposes only and not for medical, clinical, research, marketing or other purpose. Licensee shall not disclose the Results to any third party. “Results” mean the data, outcome and other information resulting from Licensee’s Evaluation.
5.3Licensee shall not allow access to or use of the Software by anyone other than Licensee’s employees who have a need-to-know and who are bound by confidentiality restrictions at least as stringent as those stated in Section 9.
5.4When the Evaluation period expires, Licensee shall promptly destroy the Software and all copies of the Software in all forms and types of media unless Licensee has timely registered with, and purchased a paid license of the Software from Persyst or an authorized Persyst reseller as provided in Section 3.2.
6. Limited Warranty
6.1 If the Software is acquired for Evaluation, the Software is delivered AS IS and WITH ALL FAULTS, without warranty of any kind.
6.2 If the Software is acquired by license under Section 3.1, Persyst warrants that the Software will substantially function as described in the User Guide for a period of one year after the Software is delivered to Licensee (the “Warranty Period”). All warranty claims must be made within the Warranty Period by contacting Persyst via email at email@example.com or by telephone at 928-708-0705.
6.3Persyst provides no warranty regarding, and shall have no responsibility for, any claim arising out of: (a) modifications of the Software by anyone other than Persyst; (b) impairment caused by accident, neglect, acts of God, or other than ordinary use of the Software; (c) Licensee’s failure to incorporate Software updates or upgrades that would have avoided the issue; or (d) use in combination with any hardware, operating system or software not authorized in the User Guide.
6.4EXCEPT AS PROVIDED IN SECTION 6, PERSYST MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PERSYST DOES NOT WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT ERROR OR THAT IT WILL RUN WITHOUT INTERRUPTION. THESE DISCLAIMERS MAY NOT BE VALID IN SOME JURISDICTIONS.
6.5 In the event of a breach of the warranty in Section 6, Persyst will either (a) repair the Software; (b) replace the Software; or (c) refund the fee Licensee paid for the license of the Software, at Persyst’s election. The remedies of replacement of the Software and refund shall be subject to Licensee’s return of all copies of the Software to Persyst. Replacement Software will be warranted for the remainder of the warranty term or 30 days, whichever is longer. The provisions of this paragraph constitute Licensee’s sole and exclusive remedy and Persyst’s entire liability for breach of warranty.
7. Persyst Software Maintenance (PSM).
7.1 During the Warranty Period. During the Warranty Period, Persyst will provide Licensee with PSM at no additional charge.
7.2 Renewal. Licensee will have the right to continue PSM at the end of the Warranty Period, subject to Persyst and Licensee signing Persyst’s then current PSM Agreement. 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 PSM.
7.3No Other Services or Products. Except as expressly provided in this Agreement, Persyst will not have any obligation to provide to Licensee any other services or products.
8. Limitation of Liability.
8.1 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 THE SOFTWARE OR THIS AGREEMENT.
8.2 THE 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 THE SOFTWARE OR THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY LICENSEE FOR THE LICENSE.
8.3SECTION 8 APPLIES TO ANY AND ALL LIABILITY AND CAUSES OF ACTION, HOWEVER ALLEGED OR ARISING. ADDITIONALLY, SECTION 8 CONSTITUTES LICENSEE’S EXCLUSIVE REMEDY (EXCEPT THE REMEDY OF REPAIR, REPLACEMENT OR REFUND UNDER THE LIMITED WARRANTY IN SECTION 6.5), EVEN IF THE REMEDY FAILS ITS ESSENTIAL PURPOSE. SECTION 8 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9. Confidential Information.
9.1“Confidential Information” means all Persyst non-public information, know-how and trade secrets in any form, provided (a) the information is designated as confidential at the time of disclosure, or (b) a reasonable person knows or reasonably should understand the information is confidential. Without limiting the foregoing, Confidential Information includes the Software and the User Guide.
9.2Licensee will use the Persyst Confidential Information only to operate the Software as expressly permitted by this Agreement and not otherwise. Licensee shall protect the Confidential Information from disclosure and unauthorized access with the same degree of care it uses to protect its own confidential information of a similar importance, but in no event less than reasonable care. Licensee shall not reverse engineer or otherwise attempt to derive any of the source code or other non-public features, elements or data of the Software. Additionally, Licensee shall not in any way disclose the Confidential Information, except to Licensee’s employees and consultants who have a need-to-know and who are bound by fiduciary or contractual duties to Licensee that are at least as stringent as the provisions of this paragraph. However, Licensee may make disclosures required by court order, subpoena or other similar legal compulsion, but only after giving prior written notice to Persyst within the time reasonably necessary to permit Persyst to contest the disclosure. The provisions of Section 9 will continue throughout the term of this Agreement and for so long as Software licenses or services are offered for sale to third parties by Persyst or its resellers, successors or assigns.
9.3 Licensee acknowledges that money damages may not be sufficient compensation for breach of this Section 9, and that such breach will cause Persyst irreparable harm and damage. Therefore, as a nonexclusive remedy, Persyst may seek enforcement of this Agreement by injunction or other equitable relief.
10. Software Audit. During the term of this Agreement and at any time during three years thereafter, Persyst may audit Licensee’s use of the Software following five days’ advance written notice. Licensee shall cooperate with the audit, including access to any books, computers, records, or other information that relate or may relate to use of the Software. The audit will not unreasonably interfere with Licensee’s business activities. If Persyst discovers unauthorized use, reproduction, distribution, or other exploitation of licensed Software, Licensee shall reimburse Persyst for the reasonable cost of the audit (or of the next audit in case of discovery without an audit) in addition to such other rights and remedies as Persyst may have. Persyst may not conduct an audit more than once per year.
11. U.S. Government Restricted Rights. The Software is provided with Restricted Rights. Use, duplication or disclosure of the Software by the Government is subject to restrictions set forth in subparagraph (c)(1) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)(ii) and (2) of Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, if and to the extent applicable.
12. Termination. Persyst may immediately terminate this Agreement, including the license to the Software, if Licensee breaches this Agreement and fails to cure the breach within 10 days after written notice of the breach. Without limiting the foregoing, a breach of this Agreement will constitute a breach of the PSM Agreement and vice versa, and any termination of this Agreement will concurrently terminate the PSM Agreement. Upon the sooner of any termination of this Agreement or the end of the Evaluation period, Licensee shall immediately destroy or return to Persyst all copies of the Software and User Guides in Licensee’s possession or control. Termination of this Agreement will not constitute an exclusive remedy. Sections 2, 6, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19 and 20 of this Agreement will survive and remain in effect after this Agreement is terminated.
13. Feedback and Analysis. If Licensee elects to provide suggestions, data, feedback and other information to Persyst regarding the operation, functionality or use of the Software, Licensee hereby grants to Persyst, without charge, the right to use, copy, modify and create derivative works of any such suggestions, data, feedback and information for the purpose of (a) improving the operation, functionality or use of any existing and future Persyst product or service offerings and commercializing the offerings; and (b) publishing aggregated statistics about the Software, provided that no data in any publication may be used to specifically identify Licensee.
14. Notices. Any notice under this Agreement must be delivered in writing and will be considered received (a) when delivered (if delivered by hand), or (b) upon confirmation of receipt, rejection or non-deliverability (if by registered mail or by FedEx or other reputable courier) to the last known address of the other party.
15. Contact Information. If there are questions about this Agreement, please contact Persyst at:
Persyst Development Corporation
3177 Clearwater Drive
Prescott, Arizona 86305
16. Decompiling Restrictions. If Licensee has any non-waivable right to decompile the Software under applicable law and it is necessary to do so in order to achieve interoperability of the Software with another software program, then Licensee may do so only if (a) Licensee has first asked Persyst in writing to provide the information necessary to achieve such interoperability, and (b) Persyst has not made the information available. The decompilation may only be performed by Licensee. Persyst has the right to impose reasonable conditions before providing the information. Any information supplied by Persyst or obtained by Licensee as permitted under this Section 16, will constitute Persyst Confidential Information, and may only be used by Licensee for the purpose described and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software, or used for any other act which infringes Persyst’s copyrights.
17. Benchmark Tests. Licensee shall not directly or indirectly publish, file with any government entity, or otherwise disclose the results of any scientific, medical, competitive or other Software benchmark test without the prior written consent of Persyst. Persyst’s consent will not be unreasonably withheld or delayed if Licensee provides sufficient information to permit Persyst to understand each of the benchmark tests, and if the tests (a) use only objectively measurable attributes, (b) do not have a tendency or capacity to be false or deceptive, (c) do not violate any applicable local, state, federal or foreign law, and (d) do not violate Section 4, Section 9 or, subject to this paragraph, any other Section of this Agreement. If Licensee breaches of this Section, then upon demand, Licensee will pay Persyst the sum of $250,000 as liquidated damages. The parties agree that quantifying damages arising from Licensee’s breach of this Section is inherently difficult because the breach may, among other things, negatively impact the reputation of the Software or Persyst, cause Persyst to lose customers, resellers, profits and goodwill, or require Persyst to prepare and implement a correction campaign. Additionally, it is stipulated that the agreed sum is not a penalty, but rather an exclusive remedy and a reasonable measure of damages based on the experiences of each of the parties, and given the nature of the damages and losses that will result.
18. Entire Agreement. This Agreement, including the Persyst quotation, the Persyst order confirmation, or Licensee’s Software registration, constitutes the complete and exclusive contract between the parties regarding its subject matter. If Licensee elects to issue any purchase order, the purchase order will be for Licensee’s internal purposes only and will not constitute contractually binding provisions or amendment to this Agreement. Other than the PSM Agreement, if applicable, 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.
19. Construction. If an ambiguity or other question of interpretation arises, this Agreement will 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 License 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.
20. 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) will 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 will 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) will 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 will be entitled to recover reasonable attorneys’ fees and costs; (h) will be construed as severable, so the court’s finding of any invalidity or unenforceability will 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.