Agreement Software License Agreement

AGREEMENT SOFTWARE LICENSE AGREEMENT

(NON-HOSTED)

This Software License Agreement (“Agreement”), dated effective as of the day of JanuaryFebruaryMarchAprilMayJuneJulyAugustSeptemberOctoberNovemberDecember, 20, (“Effective Date”), is made and entered into by and between General Electric Company by and through its division GE Healthcare (“Company”) and (“Licensee”). Company and Licensee may sometimes be individually referred to herein as a “Party” and collectively as the “Parties.”

RECITALS

Licensee is a provider of healthcare services.

Licensee is in need of certain electronic health record (“EHR”) application services, and also is in need of certain installation, implementation, training, and support and maintenance services with respect to an EHR solution.

Company has developed the Centricity® CPS EHR solution (the “Program,” as defined more fully in Schedule1.1).

Licensee would like to license the Program (inclusive of all necessary licenses to utilize the applications utilized as part of the Program), pursuant to the terms and conditions of the Agreement.

Company would like to install, implement, train, support, and maintain the Program and license the Program (together with related Documentation and Services) to Licensee, pursuant to the terms and conditions of the Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I
TRANSACTIONS

1.1  Definitions. Schedule1.1 contains a list of definitions for terms capitalized in this Agreement.

1.2  Scope and Structure of Agreement. This Agreement governs all transactions between the Parties with respect to the licensing of the Program and the purchases of related products and services by Licensee from Company (“Transactions”). The Parties shall memorialize each additional Transaction in writing by an order in the form of Schedule 1.2 (“Change Order”) to be executed by Company and Licensee. Each Transaction shall be governed by the terms of the Agreement and the applicable Change Order. A Transaction is effective as of the date on which Company and Licensee have executed the applicable Change Order (“Change Order Effective Date”).

1.3  Addition of Users: Reorganizations.

(a)  Addition. With respect to each Transaction hereunder, Licensee will have the option from time to time in its discretion to add Users to the Transaction. Each Change Order may set forth an additional License Fee required and other terms for adding Users to the Transaction. If the Change Order does not set forth an additional License Fee required, then no additional License Fee will apply. To add a User to a Transaction, Licensee shall notify Company in writing of the name of the new User and shall agree to pay the additional License Fee set forth in the Change Order, if applicable. Unless otherwise provided in an Change Order, upon Licensee’s agreement to pay the additional License Fee, if applicable, the new User will for all purposes of the applicable Change Order be deemed a User under the Change Order.

1.4  Reorganizations. The Parties anticipate that Licensee may undergo reorganizations and changes to corporate structure during the term of this Agreement. Without limiting Licensee’s rights set forth above, Licensee will have the right to reallocate license rights and the rights to receive Services under this Agreement and each Change Order among any successor in interest to Licensee, and authorized Users. Licensee shall notify Company of such changes. Such changes will be without additional cost to Licensee or Licensee’s successor in interest.

1.5  Services. Unless otherwise specified in the applicable Change Order , Company shall provide implementation services in connection with each Transaction as specified below (“Implementation Services”) and as further specified in the Change Order and/or the Statement of Work in the form of Schedule1.5 (“SOW”), which shall be incorporated, directly or by reference, into the relevant Change Order. Additional professional Services to be provided by Company may be detailed in the SOW.

1.6  Scheduling. Company and Licensee in a given Transaction may agree on target dates for certain specified milestones, such as the completion of a particular phase, the availability or acceptance of the Program or other Deliverable or the Program Cut-Over Date. These dates shall be set forth in the applicable SOW. Company shall use its commercially reasonable efforts to meet the agreed-upon target dates and shall notify Licensee as soon as Company believes that a particular target date will not be met. The Parties may also agree on deadlines for achieving specified milestones, which will also be set forth in the applicable SOW. If Company fails (or appears likely to fail) to meet a deadline for any reason attributable solely and directly to the fault of Company (including its subcontractors), Company shall immediately notify Licensee and shall provide additional persons or other resources, as requested by Licensee and at no additional charge to Licensee, to complete the task involved within the stated deadline or, if the deadline is missed, in as timely a manner as possible. Company shall use commercially reasonable efforts to commence Implementation Services no later than 60 days after contract is signed unless Licensee request a later date.

1.7  Rights in Data. Licensee will be the sole and exclusive owner of all data, specifications, and other information provided to Company by or on behalf of any User (“Licensee Data”) and all IP Rights in the foregoing. Licensee Data will be deemed Licensee’s Confidential Information. Company hereby irrevocably assigns to Licensee, without further consideration, all IP Rights and other rights Company may have or obtain in Licensee Data. Upon any expiration or termination of this Agreement, or upon Licensee’s request at any time, Company shall promptly provide an electronic copy of all Licensee Data to Licensee in the format and with the file layouts reasonably requested by Licensee, at no additional charge to Licensee. If Licensee requests at any time, Company shall destroy all copies of the Licensee Data in Company’s possession or control. Company shall not withhold any Licensee Data as a means of resolving any dispute. Company shall not use Licensee Data for any purpose other than that of rendering Services under this Agreement, nor sell, assign, lease, dispose of or otherwise exploit Licensee Data. Company shall not possess or assert any lien or other right against or to Licensee Data. Company reserves all rights in and licenses to the Program not expressly granted to Licensee under this Agreement. Licensee acknowledges that Company or its third party partners own all worldwide right, title and interest in and to the Program, including all worldwide patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction (“Intellectual Property Rights”). Licensee will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Software or the Solution. Licensee may not sublicense, timeshare, provide service bureau or subscription services or otherwise transfer the Program.

1.8  Safeguarding Licensee Data. Company shall establish and maintain environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, loss, or alteration of Licensee Data in the possession of Company which are in conformance with the attached Business Associate Agreement.

1.9  Security. At a minimum, Company shall employ the following security methods and procedures.

(a)  Access Controls. Company shall only permit access to Licensee Data in accordance with the terms of this Agreement or as otherwise agreed by the Parties in writing.

(b)  Restricted Access. Company shall not access Licensee Data except as necessary to provide Services under this Agreement.

1.10  Licensee Network Access. To the extent Company is granted access to Licensee’s network, Company shall use such access solely to meet its obligations under this Agreement.

1.11  URL Ownership. Each Party shall retain ownership of its respective intellectual property, including its respective URLs, Hyperlinks, trademarks, trade names or otherwise. Licensee Data. All Licensee trademarks, copyrights and patents, and information relating to Licensee’s employees, including User data, are the sole property of Licensee, and may be used by Company only with the express written permission of Licensee. Company has no ownership rights over Licensee’s intellectual property developed independently and which is not based on or a derivative work of Company’s intellectual property.

ARTICLE II
IMPLEMENTATION SERVICES

2.1  Company’s Responsibilities. In each Transaction, Company shall provide implementation Services, and the Implementation Services shall include those services necessary to install, implement, integrate, and configure the Program. Company and Licensee shall organize a mutually acceptable implementation work plan which will be attached to the applicable Change Order or Statement of Work (“Implementation Work Plan”). At a minimum, the Implementation Work Plan will spell out the key responsibilities of the respective Parties and the critical dates associated with the implementation of the Program, including installation dates, implementation and integration dates, testing dates, training dates, Program Cutover and the like. Company shall use its reasonable best efforts to cooperate with Licensee’s service partners and local extension centers during the implementation of the Program.

2.2  Professional Services. For each Transaction, Company shall install and configure the Program and other Deliverables, integrate the Program and other Deliverables (if they have been sold as an overall system), and perform any Additional Services specified in the SOW accompanying the Change Order.

2.3  Delivery and Installation.

(a)  Delivery. Company shall deliver the Deliverables to Licensee at the address set forth on the applicable Change Order (“Delivery Location”) on or before the date specified on the applicable Change Order (“Scheduled Delivery Date”). Delivery of the Program and any other Deliverables shall be deemed to have been made upon either (a)the receipt of the Program and/or Deliverables by Licensee; or (b)to the extent Company is able to make the Program and/or Deliverables available for downloading, the receipt of electronic confirmation by Company that the electronic mail to Licensee containing instructions for downloading the Program or Deliverables from Company’s FTP download site has been sent (“Actual Delivery Date”).

(b)  Risk of Loss. The risk of loss of all Deliverables shall be transferred to Licensee upon the Actual Delivery Date.

(c)  Shipping Costs. Company shall pay all shipping and handling costs to deliver the Program and any and all Deliverables specified in the applicable Change Order, at no additional charge to Licensee.

(d)  Failure to Install. For Deliverables that Company is obligated to install under the terms of the Agreement, if Company delivers such Deliverables but is unable to provide installation/implementation services after it has contractually agreed to provide them , then such failure shall constitute a material breach of the Agreement. To the extent Company is unable to provide installation/implementation services after it has contractually agreed to provide them and Licensee has to seek a third party to install the Program or has to install the Program itself , Licensee may, at its option, elect either (i)to return the Program and any other Deliverables received by Licensee from Company in exchange for a full refund of the License Fee and any other fees paid by Licensee to Company for such materials, including, without limitation, any return shipping and handling charges incurred by Licensee; or (ii)retain possession of the Program and any other Deliverables received by Licensee from Company, in which case Company shall refund to Licensee any amount paid or pre-paid by the Licensee for installation or implementation services . The remedies set forth in this Section shall constitute Licensee’s sole and exclusive remedies with respect to the subject matter addressed herein.

2.4  Training. Company shall sufficiently train personnel designated by Licensee in the use of the Program in accordance with the mutually agreed upon Implementation Work Plan.

2.5  Cut-Over Support. In connection with each Program Cut-Over, Company shall provide Support in accordance with the Centricity Software Support Policy attached to this Agreement as Schedule 5.3.

ARTICLE III
LICENSE TERMS

3.1  Grant. Company grants Licensee a non-exclusive, non-transferable license to use, for Licensee’s internal business purposes only, the software provided hereunder to Licensee, subject to the license scope and other restrictions set forth in this Agreement. Licensee may permit its employees, agents, independent contractors and healthcare providers with privileges at Licensee’s facilities to use the software consistent with this Agreement; provided, however, that Licensee shall be responsible for any acts of its employees, agents and/or independent contractors that are inconsistent with this Agreement. Independent contractors that supply products comparable to the Program shall be provided access to the Program only if they execute non-disclosure agreements with Company prior to such access. Licensee may make a reasonable number of copies of the software in machine-readable form solely for backup, training, testing or archival purposes, so long as applicable license fees are paid. Licensee shall reproduce on any such copy the copyright notice and any other proprietary legends that were on the original copy.

3.2  Licensee agrees to use any third party software provided by Company only together with the Company software, to protect any third party software provided by Company at a minimum as it does the Company software and to comply with all restrictions on the use of that third party software included in any click or shrink wrap license or of which Company makes Licensee aware. To the extent permitted by applicable law, licensors of third party software provided by Company shall be third party beneficiaries of this Agreement with respect to products licensed to Company by such licensors and sublicensed to Licensee.

3.3  Licensee agrees not to (1) display, sublicense, transmit, distribute, rent, lease, loan, resell, provide service bureau or subscription services, sell, time share or otherwise transfer or make available the Program to any other person or entity, unless expressly provided otherwise under this Agreement; (2) electronically transfer the Program outside Licensee’s intranet or network dedicated for the software, unless otherwise authorized in writing by Company; (3) directly or indirectly, decompile, disassemble, reverse engineer or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Program or reduce the Program to human perceivable form; (4) modify or translate the Program or create derivative works based thereon, except that to the extent applicable, the software may be configured as specifically permitted in the documentation; (5) remove, obscure or modify any markings, labels or any notice of the proprietary rights, including copyright, patent and trademark notices of Company or its vendors from any media or documentation; or (6) publicly release the results of any testing or benchmarking of the software without the prior written consent of Company.