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SOFTWARE LICENSE AGREEMENT

This Agreement last Updated: July 21, 2017

PERSYST SOFTWARE LICENSE AGREEMENT

This Agreement becomes a legally binding contract between Persyst Development Corporation (“Persyst”) and the party acquiring the license to use the 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 benefits from the services of Persyst.  Persyst and Licensee may each be referred to in this Agreement as a “party” and together as the “parties.”

1       Definitions. The following definitions 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 form and manipulates it for a specific result based on a sequence of instructions.  Examples include desktop computers, laptops, tablets, emergency mobile units, and patient monitoring devices, 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 whether Licensee will purchase a Section 4.1 license.  The Evaluation period will not extend beyond 30 days except with prior written consent signed by an authorized representative of Persyst.  The 30-day period begins when the Software is delivered to Licensee. 

PSA” means the Persyst Software Assurance Agreement.

Software” means the EMU Long-Term Monitoring, ICU Continuous Monitoring, Advanced Review, Clinical Review, Routine and Ambulatory Review, or other Persyst software products, combination suites, upgrades or updates as may be provided to Licensee.  “Software” does not include “Persyst Remote Services” (as defined in the PSA). 

User Guide” means the Persyst user guide installed with the Software or Persyst Remote Services, as applicable.

2       Ownership of the Software. The Software is licensed (not sold), and Licensee receives no title or ownership of any Software. The structure, organization and source code of the Software constitute valuable Confidential Information of Persyst.  The Software is protected by law, including copyright and trade secret laws.  Except as expressly stated in Section 4, Licensee receives no rights to the Software.

3       Licensee Representation and Warranty. Licensee represents and warrants to Persyst that Licensee provides medical services or performs medical research as a hospital, clinic, or academic medical organization, or Licensee is a third party medical services provider (collectively, “Medical Services”). 

4       Grant of License to Software.

4.1       In reliance upon the representation and warranty in Section 3, and if the Software is registered and unlocked and the license is paid in full, Persyst grants Licensee a nonexclusive license to install and operate the Software only for Medical Services, in the permanent memory of a single Computer.  This license will continue for so long as Licensee does not breach any of the provisions of this Agreement.  Except as expressly granted in this paragraph or required by applicable law, Licensee shall not have any other rights to the Software.       

4.2       If Licensee receives Software that is not unlocked, registered and paid in full, Persyst grants to Licensee a nonexclusive, nontransferable license to install and operate the Software only for Evaluation on a single Computer. If Licensee pays the license fee in full before the expiration of the Evaluation period, this Evaluation license will convert to a Section 4.1 license upon Licensee’s registration and the unlocking of the Software.  OTHERWISE, THIS EVALUATION LICENSE AND LICENSEE’S RIGHT TO ACCESS AND USE THE SOFTWARE, AUTOMATICALLY TERMINATES AT THE END OF THE 30-DAY EVALUATION PERIOD. FOR CLARITY, THE SOFTWARE WILL STOP OPERATING AT THE END OF THE EVALUATION PERIOD. 

5       Restrictions and Obligations

5.1       Licensee shall not reproduce the Software, except that Licensee may make reasonably necessary copies of the Software solely for backup and archival purposes.  Licensee shall not copy the User Guide.    

5.2       This Agreement and the Software are transferable only to another Medical Services provider, and only with the signed written consent of an officer of Persyst, which will not be unreasonably withheld or delayed.

5.3       Licensee shall not (a) modify, create derivative works from, distribute, publicly display or perform, 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, pass codes, or other protective mechanism related to the Software; (d) use the Software for service bureau, time-sharing, software-as-a-service, or any similar manner, with or without charge; and/or (e) enable, encourage or allow anyone to do any of the forgoing.

5.4       Licensee shall comply with all local, state, federal and foreign laws applicable to the Software, or to Licensee in connection with its use of the Software, including HIPAA.  Licensee shall not transmit to Persyst any Personally Identifiable Information, Limited Data Set, or Protected Health Information.  Licensee shall promptly report to Persyst any Security Incident that pertains to Persyst or the Software.  All capitalized words and phrases in this paragraph will have the meanings defined in HIPAA.

5.5       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.

5.6       Licensee shall not remove or modify any proprietary markings in the Software.

5.7       Unless otherwise specifically agreed in writing signed by Persyst, Persyst shall not be required to travel to Licensee’s facilities.

5.8       For purposes of this Section, a “System Change” means a change to different hardware, operating system version, or EEG manufacturer software version on a Computer running the Software.  Prior to any System Change, Licensee shall first confirm that Persyst has validated the version of the Software 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 Software 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. 

6       Evaluation License. The following restrictions will apply to all Evaluation licenses, in addition to the restrictions described in Sections 5.3, 5.4, 5.5, 5.6, and 5.7: 

6.1       Licensee shall not reproduce, transfer, copy, or export, the Software or User Guide.

6.2       Licensee shall use the Results only for Evaluation purposes and not for medical, clinical, research, marketing or other purposes. Licensee shall not disclose the Results to any third party.  “Results” mean the data, outcome and other information resulting from Licensee’s Evaluation.

6.3       Licensee 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 10.

6.4       When the Evaluation period expires, Licensee shall promptly Erase 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 and unlocked license for the Software as stated in Section 4.2.  “Erase” means the destruction of data so that no copy of the data remains or can be accessed or restored in any manner.

7       Limited Warranty.

7.1       If the Software is for Evaluation, the Software is delivered AS IS and WITH ALL FAULTS, without warranty of any kind. 

7.2       If the Software is licensed under Section 4.1, Persyst warrants that newly delivered Software will substantially function as described in the User Guide for a period of one year after the Software order date (the “Warranty Period”). To be valid, all warranty claims must be made within the Warranty Period. Claims must be made by reporting to Persyst via email at support@persyst.com or by telephone at 928-708-0705.  For clarity, this warranty only applies to new orders of the Software. 

7.3       EXCEPT AS EXPRESSLY STATED IN SECTION 7.2, 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. Persyst does not warrant the Software will perform without error or interruption. Persyst provides no warranty regarding, and shall have no responsibility for, any claim arising out of any (a) modification 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 validated and supported by Persyst as stated at http://www.persyst.com/support/supported-formats/.

7.4       In the event of a breach of the Section 7.2 warranty, Persyst will, at its election, either repair the Software or replace it with Software of substantially similar functionality.  If Persyst elects to replace the Software, Licensee shall return 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.

8       Persyst Software Assurance.

8.1       If Licensee duly accepts the then-current PSA, then during the Warranty Period, Persyst will provide the first year of Services (as defined in the PSA) for the new Software licensed under Section 4.1 at no additional charge. 

8.2       Except as expressly stated in this Agreement or the PSA, Persyst shall not have any obligation to provide any other services or products to Licensee.

9       Limitation of Liability.

9.1       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, THIS AGREEMENT, OR ANY DISPUTE BETWEEN THE PARTIES.

9.2       ADDITIONALLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF PERSYST AND PERSYST’S OFFICERS, DIRECTORS, AND EMPLOYEES, FOR ANY AND 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 SOFTWARE, THIS AGREEMENT, OR ANY DISPUTE BETWEEN THE PARTIES, EXCEED THE TOTAL FEES PAID BY LICENSEE FOR THE LICENSE GRANTED UNDER THIS AGREEMENT. 

9.3       THE LIMITATIONS IN SECTION 9 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.

10       Confidential Information.

10.1     “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. Confidential Information does not include information that Licensee proves (i) is in Licensee’s possession at the time of disclosure; (ii) becomes known publicly, before or after disclosure, other than as a result of Licensee’s improper action or inaction; or (c) is approved for release in writing by an officer of Persyst.

10.2     Licensee may use the Confidential Information only to operate the Software as expressly permitted by this Agreement. 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 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.  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 10 will continue throughout the term of this Agreement and for so long as Persyst, or its assignee, offers Software licenses, or services for sale to third parties.

11       Software Audit. During the term of this Agreement and for three years after, 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 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 any Software, Licensee shall pay Persyst for the reasonable cost of the audit (or the next audit if discovery occurred without an audit), license fees for all versions and copies of the Software licenses that should have been purchased, late fees at the rate of 12% per annum from the date the Software should have been purchased, damages for copyright infringement, and such other damages and remedies as Persyst may be entitled.  Persyst shall not conduct an audit more than once per year.

12       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 stated 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.

13       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 PSA and vice versa, and any termination of this Agreement will concurrently terminate the PSA.  Upon the sooner of any termination of this Agreement or the end of the Evaluation period, Licensee shall immediately Erase 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 1, 2, 3, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 6, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21 and 22 of this Agreement will survive and remain in effect after this Agreement is terminated. 

14       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.

15       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, FedEx or other reputable courier) to the last known address of the other party. 

16       Contact Information. If there are questions about this Agreement, please contact Persyst at (928) 708-0705 or support@persyst.com. 

17       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 first asks Persyst in writing to provide the information necessary to achieve such interoperability, and (b) Persyst fails or refuses to make the information available. Any permitted decompilation may only be performed by Licensee.  Persyst has the right to impose reasonable conditions before providing such information.  Any information supplied by Persyst or obtained by Licensee as permitted under this Section (i) will constitute Persyst Confidential Information, (ii) may only be used by Licensee as described in this paragraph, (iii) shall not be disclosed to any third party; (iv) shall not be used to create any software that is substantially similar to the expression of the Software; and (v) shall not be used for any act that infringes Persyst’s copyrights or other rights.  

18       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 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 and/or Persyst, cause Persyst to lose customers, resellers, profits and goodwill, and/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.

19       Entire Agreement. This Agreement, including the Persyst Order Confirmation and the PSA, 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 an amendment to this Agreement.  Other than the PSA, all prior and contemporaneous agreements, understandings, orders, representations and negotiations of the parties, whether verbal, written or electronic, are superseded by this Agreement. 

20       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 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; and (d) Section headings are provided for convenience only and do not affect interpretation. 

21       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. 

22       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.