This Agreement last Updated: July 21, 2017
PERSYST SOFTWARE ASSURANCE AGREEMENT
This Agreement becomes a legally binding contract between Persyst Development Corporation (“Persyst”) and the licensee of the Persyst Software (“Licensee”) if Licensee or its agent (1) clicks or otherwise indicates electronic acceptance, (2) installs, accesses, or uses the Software; (3) accepts the Persyst Quotation and/or Order Confirmation, (4) registers the Software with Persyst, and/or (5) orders, renews, or otherwise benefits from the Services. Persyst and Licensee may each be referred to in this Agreement as a “party” and together as the “parties.” “Software” has the meaning defined in the SLA.
1 Term. The Term of this Agreement will begin on the order date for the Services. This Agreement will expire at the earlier of (a) the applicable annual anniversary of the order date, depending on the number of years the Services are subscribed to and paid for by Licensee, or (b) the expiration or other termination of the SLA. Services for renewal terms are subject to written agreement between the parties and Licensee’s payment of all applicable fees for Services. “Term” means the initial term and any renewal term.
2 Technical Representative. Licensee shall appoint and retain at all times, one qualified person as Licensee’s appointed representative (“Technical Representative”) to conduct telephone, email and web-conferencing communications with Persyst regarding the Services. The Technical Representative may also appoint another person properly trained in the operation and usage of the Software and Persyst Remote Services to communicate with Persyst. Licensee shall promptly notify Persyst of the name and contact information for the Technical Representative and assistant, and all replacements.
3 Services. If Licensee continues to comply with this Agreement and the Persyst Software License Agreement (the “SLA”), Persyst shall provide the following services, as commercially available, to Licensee throughout the Term (collectively, the “Services”):
3.1 Upgrades and Updates. From time to time at Persyst’s discretion, Persyst will develop and provide Licensee with upgrades or updates to the Software and to Persyst Remote Services (as defined in Section 3.4). Licensee shall install all upgrades and updates within a reasonable time after receipt. Upgrades or updates will not under any circumstances include new software developed and marketed by Persyst as separate products or services.
3.2 Support. Persyst will provide technical and clinical applications support to the Technical Representative for the Software and Persyst Remote Services via telephone, email and web-conferencing during Persyst’s normal business hours.
3.3 Error Corrections. If Licensee determines that an Error exists in the Software or Persyst Remote Services during the Term, Licensee will first follow applicable 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 firstname.lastname@example.org, specifically describing the defects. Alternatively, Licensee may report the Error to Persyst via telephone at 928-708-0705, provided that Licensee follows-up the call with an immediate email to email@example.com describing the defects in detail. Upon receipt of notification of a reported Error, Persyst will attempt to reproduce and verify the Error and, if verified, Persyst will attempt to correct the Error within the time and priority reasonably determined by Persyst. “Error” means an error in coding or logic that causes the Software or Persyst Remote Services not to substantially function as described in the User Guide.
3.4 Persyst Remote Services.
(a) Definitions. “Mobile App” means the Persyst application(s) available for operation on selected mobile devices, and “Web App,” means the Persyst application(s) available for operation within selected web browsers (Mobile App and Web App, together, the “Apps”.) “Persyst App Server” means the Persyst software that enables the Apps to access patient data. (The Apps and Persyst App Server, together, “Persyst Remote Services”.)
(b) Grant of License to Persyst Remote Services. Subject to the restrictions in Section 3.4(e), if Licensee accepts the terms of the App license agreement, and if Licensee has a license to install and operate the Software under a Persyst license agreement, Persyst grants to Licensee a nonexclusive license to install and operate the Persyst App Server on Licensee’s Computer, solely to interface the Apps with the Software. This license will end concurrently with the expiration or termination of this Agreement or the SLA.
(c) Access to Data. Upon any expiration or termination of the SLA, the Services, or this Agreement, the key to the Persyst App Server will automatically lock, and Licensee will no longer be able to access Persyst Remote Services. If for any reason access to the data does not terminate automatically, Licensee is nevertheless prohibited from using Persyst Remote Services.
(d) Liquidated Damages. If Licensee continues to use the Persyst Remote Services after the end of this Agreement or otherwise uses the Persyst Remote Services in violation of its license, the damages to Persyst will be uncertain, impractical to quantify, and inherently difficult to ascertain because (a) Persyst invested substantial time and money to develop and market Persyst Remote Services; (b) the scope and duration of the market for Persyst Remote Services is uncertain; (c) Persyst works within regulatory environments and must know who is using Persyst Remote Services; (d) the discovery, monitoring and other determinations of violations are time consuming and expensive; (e) Persyst Remote Services is protected by U.S. Copyright laws with statutory damages for infringement that cannot be readily determined; and (f) the unique nature of Persyst’s business model results in additional risks, costs and lost benefits. Therefore, if Licensee continues to use the Persyst Remote Services after any expiration or termination of this Agreement, Licensee shall pay Persyst a fee of $50,000 for each year and for each Computer that used or uses the Persyst App Server outside the scope of its license (partial years will be pro-rated). It is hereby stipulated that the agreed fee is not a penalty, but rather an exclusive remedy and a reasonable measure of damages based on the parties’ experiences and given the nature of the losses that may result.
(e) Restrictions and Obligations. Except as otherwise stated in this Agreement, the restrictions and obligations applicable to Licensee with respect to Persyst Remote Services will be consistent with the restrictions and obligations applicable to Software in the SLA.
(f) Inconsistencies. In the event of any inconsistencies between this Section 3 and the SLA, this Section 3 will control in regard to Persyst Remote Services.
4.1 Except as otherwise expressly stated in Section 3, Persyst shall not have any responsibility to provide any services to Licensee, including (a) customization or modification of the Software or Persyst Remote Services; (b) technical or installation services; (c) interfaces to or interoperability with any software, hardware or systems; or (d) remedial services for (i) impairment caused by force majeure events, (ii) Licensee’s failure to incorporate updates or upgrades, (iii) use in combination with any hardware, operating system or software not validated or authorized in the User Guide or in writing signed by Persyst, or (iv) other causes not under the control of Persyst.
4.2 Prior to any System Change, Licensee shall first confirm that Persyst has validated the version of the Persyst App Server on the proposed new system by visiting http://www.persyst.com/support/supported-formats/. If the new system has been validated by Persyst, Licensee may make the System Change. If the new system has not been validated by Persyst, Licensee shall not make any System Change unless (a) Licensee updates its version of the Persyst App Server to one that is supported on the proposed new system; or (b) Licensee receives written consent from Persyst. Licensee may be required to purchase an upgrade or Persyst Software Assurance in order to obtain Persyst’s consent. For clarity, Persyst is not required to validate any system. A “System Change” means a change to different hardware, operating system version, or EEG manufacturer software version on a Computer running the Software.
5 Fees and Expenses.
(a) First Year. Persyst will provide the first year of Services without charge for newly ordered Software.
(b) Fees. Licensee shall pay fees for the Services as stated in the Persyst order confirmation. Licensee shall pay for all other services ordered through Persyst, if any, at Persyst’s then standard rates and terms.
(c) Payment Terms. Unless otherwise stated in writing signed by Persyst, all Service fees will be due and payable in advance, and no Services will be provided before payment of the applicable Service fees.
(d) Pro Rata Increases. During any multi-year Service term, if Licensee purchases additional licenses, the Service fees will be increased on a pro rata basis using the multi-year rate, and will be invoiced at the incremental cost. No refunds will be given.
5.2 Non-Renewal. Licensee must renew this Agreement in order to continue to use the Services. If there is a lapse in Persyst Software Assurance, Licensee may reinstate the Services by signing or electronically accepting the then-current Persyst Software Assurance Agreement, and paying any applicable fees to Persyst, including late fees. Reinstated Service fees are annual and retroactive to the Agreement expiration date.
5.3 Late Payments. Licensee shall pay late charges equal to 1.0% per month or the maximum rate permitted under applicable law, whichever is less, on all past due amounts commencing on the due date. Additionally, Persyst will have the right to withhold Services if payments are more than 60 days past due.
5.4 Taxes. Licensee shall pay all taxes, charges, fees, levies and other assessments, if any, imposed or collected by any government entity worldwide on sales or delivery of the Services, 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 EXCEPT AS EXPRESSLY STATED IN SECTION 7.2 OF THE SLA, PERSYST MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
6.2 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 SERVICES, THIS AGREEMENT, OR ANY DISPUTE BETWEEN THE PARTIES.
6.3 ADDITIONALLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF PERSYST AND PERSYST’S OFFICERS, DIRECTORS AND EMPLOYEES, FOR ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND LIABILITIES OF ANY NATURE WHATSOEVER (INCLUDING ATTORNEYS’ FEES AND COSTS) RESULTING FROM OR IN ANY WAY RELATED TO THE SERVICES, THIS AGREEMENT, OR ANY DISPUTE BETWEEN THE PARTIES, EXCEED THE ANNUAL SERVICE FEES MOST RECENTLY PAID BY LICENSEE.
6.4 THE LIMITATIONS IN SECTION 6 APPLY (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (C) EVEN IF PERSYST IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF LICENSEE’S REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
7 Termination. This Agreement will automatically terminate at the end of the Term. If Licensee breaches this Agreement and fails to cure the breach within 10 days after written notice of default, Persyst may immediately terminate this Agreement. Without limiting the foregoing, a breach of this Agreement will constitute a breach of the SLA and vice versa. Termination of this Agreement will not constitute an exclusive remedy. Sections 3.4(a), 3.4(d), 3.4(e), 3.4(f), 5, 6, 7, 8, 9, 10, and 11 of this Agreement will survive and remain in effect after this Agreement ends.
8 Entire Agreement. This Agreement, along with the Persyst Order Confirmation and the SLA, constitutes the complete and exclusive contract between the parties regarding its subject matter. Other than the SLA, all prior and contemporaneous agreements, understandings, orders, representations and negotiations of the parties regarding the subject matter of this Agreement, whether verbal, written or electronic, are superseded by this Agreement. If Licensee elects to issue any purchase orders regarding the Services, the purchase orders will be for Licensee’s internal purposes only and will not constitute contractually binding provisions or amendment to this Agreement.
9 Construction. If any 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 either party as a result of authorship. Unless the context requires otherwise, (a) references to this Agreement, mean this Persyst Software Assurance 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; and (d) section headings are provided for convenience only and do not affect their interpretation.
10 Equitable Relief. Licensee acknowledges that money damages may not be sufficient compensation for its breach of this Agreement, and that a breach will cause Persyst irreparable harm and damage. Therefore, as a nonexclusive remedy, Persyst will have the right to enforce this Agreement by temporary restraining order, injunction or other equitable relief, and will have the right to obtain such relief in any court of competent jurisdiction.
11 Other Important Provisions. This Agreement (a) does not create any agency, partnership, employment or joint venture relationship; (b) will 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; (d) is not for the benefit of any third party except it 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) will be construed according to the laws of the state of California without reference to its conflict-of-laws principles, and the parties each irrevocably submits to the jurisdiction of the federal or state courts in San Diego County, California 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; and (g) 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.