SOFTWARE AGREEMENT AND LICENSE
between
HEALTHRX CUSTOMER
and
HEALTHRX CORPORATION
Dated June 1, 2001
SOFTWARE AGREEMENT AND LICENSE
THIS AGREEMENT, made and entered into this 1st day of June, 2001 by and between HealthRx Corporation (hereinafter "Licensor"), a corporation duly organized and existing under the laws of the State of Virginia, and HealthRx Customer, Street, City, State Zip (hereinafter "Licensee").
WITNESSETH:
WHEREAS, Licensor has acquired specific expertise in the development of application software in the field of Computational Medicine (the Subject Programs);
WHEREAS, Licensee has a need for certain application software;
WHEREAS, Licensor is ready, willing and able to provide software to Licensee and to grant Licensee a license to utilize same on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises as well as the obligations herein made and undertaken, the parties, intending to be legally bound, agree as follows:
Section 1 : DELIVERY; INSTALLATION; ACCEPTANCE; SUPPORT
1.1Delivery and Installation. The system furnished shall conform to, and perform as stated in the Functional Specifications, attached in Exhibit A, and in accordance with any data processing requirements in this Agreement. Licensor shall install Subject Programs at Licensee's location beginning no later than the date set forth in the Installation Schedule attached at Exhibit B. The delivered Subject Programs shall include (i) the software, (ii) documentation, (iii) training as set forth at Exhibit E.
1.2Acceptance Tests. Licensee shall perform the tests as specified at Exhibit C attached hereto (hereinafter referred to as the Acceptance Tests), and such other acceptance tests as are consistent with the Functional Specifications, to determine whether the Subject Programs (1) conform to the Functional Specifications and (2) perform on an appropriate variety of Licensee data without failure.
1.3When the Acceptance Tests establish that the Subject Programs delivered comply with the applicable provisions of the Functional Specifications, in accordance with standards generally accepted in the software industry for finished products, Licensee shall promptly notify Licensor that it accepts the Subject Programs, and the date of such notification shall be the date on which Licensee shall be obligated to make the applicable installment payment specified in the payment schedule attached at Exhibit D.
1.4Time frame for Acceptance Tests Licensee shall use its best efforts to expedite the Acceptance Tests, however, such Acceptance Tests will take no longer than 30 days from the beginning of the Installation period at which point acceptance notification will be deemed to have been given.
1.5Support. The license price includes 30 days (up to sixteen hours) of user support after beginning of installation. Support after that time is available on an annual prepaid basis according to Licensor's current pricing schedule.
Section 2 : COMPENSATION
2.1Installment Payments. Licensee shall pay Licensor in accordance with the Payment Schedule attached at Exhibit D. Each installment shall be payable upon completion of each performance event.
2.2Taxes. The fees set forth above are exclusive of taxes. Licensee shall be responsible for all sales and use taxes, levies, and assessments on this transaction. Licensor shall pay all taxes based on the net income of Licensor, as well as all franchise, personal property, or other such taxes associated with Licensor's ownership of intellectual property rights in the Subject Software, the sites of said rights being at Licensor's principal place of business. Licensor is not responsible for any post-transaction taxes associated with Licensee's use of, or possessory interest in a copy of, the Subject Programs. Licensee shall, upon receipt of notice from Licensor, promptly pay, or if Licensor has paid any such amounts, reimburse Licensor for sales and use taxes, levies, or assessments on this transaction.
Section 3 : GRANT OF LICENSE
3.1Licensor hereby grants to Licensee, subject to the terms and conditions of this Agreement, a non-transferable license, except as provided herein, to the Subject Programs.
3.1Scope of License. The license granted pursuant to Section 3.1 shall authorize Licensee to:
a.Install and use the computer software portion of Subject Programs on computer systems owned or leased by Licensee as encompassed in the Licensee System Description attached at Exhibit F; and,
b.Copy the Subject Programs only as necessary to exercise the rights granted herein.
Section 4 : PROPRIETARY PROTECTION OF SUBJECT PROGRAMS
4.1Limited Right of Use. This Agreement does not provide Licensee with title or ownership of the intellectual property represented by Subject Programs, but only a limited right to use and copy the Subject Programs as provided herein. Licensee acknowledges that Subject Programs contain and/or are derived from software and software libraries which form the basis of Licensor's software business and which Licensor has developed and continues to develop for Licensor's unrestricted use. Licensee shall keep the Subject Programs free and clear of all claims, liens, and encumbrances.
4.2Reservation of Rights; Acknowledgments. Licensee acknowledges that the Subject Programs and all program documentation relating thereto under this Agreement and provided by Licensor hereunder are commercially valuable, proprietary products of Licensor, the design and development of which reflect the effort of skilled development experts and the investment of considerable time and money. Licensee acknowledges that the Subject Programs and all program documentation relating thereto contain and shall contain substantial trade secrets of Licensor, which Licensor shall entrust to Licensee in confidence to use and copy only as expressly authorized by this Agreement. Licensee further acknowledges that Licensor claims and reserves all rights and benefits afforded under federal copyright law in all Subject Programs and program documentation, as unpublished works. Any copying, modification, or distribution of such copyrighted works not expressly authorized by this Agreement is strictly forbidden.
4.3Confidentiality Obligations. In addition to those limitations on Licensee's rights set forth in Section 3, Licensee shall not, at any time, disclose or disseminate the trade secrets embodied in the Subject Programs or any supporting program documentation to any other person, firm, organization, or employee who does not need to obtain access thereto consistent with Licensee's rights under this Agreement. Under no circumstances may Licensee disclose or disseminate such trade secrets to any competitor of Licensor. Licensee shall devote its best efforts to ensure that all persons afforded access to the Subject Programs and all supporting program documentation protect Licensor's trade secrets against unauthorized use, dissemination, or disclosure.
4.4Survival of Obligations. Licensee's obligations under this Section 4 shall survive termination of this Agreement for any reason and shall remain in effect for as long as Licensee continues to possess, use, or control the Subject Programs, any supporting program documentation, or any trade secrets derived therefrom.
Section 5 : LIMITED WARRANTY; LIMITATION ON REMEDIES
5.1Limited Warranty. Licensor warrants, for the benefit only of Licensee, that the Subject Programs shall conform to the Licensor’s Functional Specifications (except for subsequent modifications made by Licensee or at Licensee's request). Such warranty shall apply only to nonconformity with the Functional Specifications and only for a period of one year after acceptance of the Subject Programs. Licensor assumes no responsibility for obsolescence of the Subject Programs. The Licensee will designate a single Contact Person through whom all communication with reference to the limited warranty must flow.
5.2Special Warranties. The parties hereto agree that Licensee is relying upon the expertise and skill of the Licensor for the specification and design of the Subject Programs. Licensor further warrants that the Subject Programs shall be at the Licensor's most current release level.
5.3Exclusive Remedy. During the Limited Warranty period, as the exclusive remedy of Licensee for any nonconformity or defect in the Subject Programs for which Licensor is responsible, Licensor shall first be given the opportunity, not to exceed ninety (90) days, to correct or cure such nonconformity or defect. However, Licensor shall not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Subject Programs if (1) Licensee has performed any maintenance to the Subject Programs without Licensor's authorization; (2) the Subject Programs have been misused or damaged in any respect other than by personnel of Licensor; or (3) Licensor has not been notified of the existence and nature of such nonconformity or defect within a reasonably prompt time of its discovery.
5.4Disclaimer. LICENSOR DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WITH RESPECT TO THE SUBJECT PROGRAMS OR ANY OTHER MATERIAL FURNISHED HEREUNDER OR ANY COMPONENT THEREOF.
5.5Limitation of Liability. The cumulative liability of Licensor to Licensee for all claims related to the Subject Programs, except for warranty of title, or infringement of patent or copyrights of third parties, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all fees paid to Licensor by Licensee under this Agreement, plus attorneys' fees and costs.
5.6Consequential and Special Damages. In no event shall Licensor be liable for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands for breach of this Section 5.
Section 6 : WARRANTY OF TITLE
6.1Ownership of Subject Programs. Licensor represents and warrants to Licensee, its successors and assigns, that (i) the Subject Programs are original; (ii) as of the date of this Agreement and as of the date of delivery, Licensor has the full good, valid, exclusive and marketable right, title and interest in and to the Subject Programs or is authorized to use components incorporated therein; (iii) that Licensor is or shall be the author of the Subject Programs; (iv) that Licensor owns, without lien or encumbrance, full and exclusive rights and ownership in the Subject Programs and in any related letters patent, trademarks, copyrights, proprietary information and trade secrets associated therewith except for components incorporated therein which Licensor is authorized to use; and (v) that Licensor has full authority and power to enter into this Agreement.
6.2No Infringement. Licensor represents and warrants that as of the date of this Agreement, it has and as of the date of delivery, will have no knowledge or awareness of any claim, or of any facts that may lead to any claim, by third parties of infringement of any rights as a result of this Agreement or acts contemplated by or taken in furtherance of this Agreement.
Section 7 : INFRINGEMENT OF THIRD-PARTY RIGHTS
7.1Indemnification. Licensor shall provide Licensee with the following protection against claims of proprietary right infringement of the Subject Programs:
a.Licensor shall (1) indemnify Licensee from and against any liability, cost, loss, or expense of any kind, including reasonable attorneys' fees and costs; (2) hold harmless Licensee and save it from any liability, cost, loss, or expense of any kind; and (3) defend any suit or proceeding against Licensee arising out of or based on any claim, demand, or action alleging that the Subject Programs or any portion thereof as furnished under this Agreement and used within the scope of the license hereunder infringes any third-party rights in copyright or issued patent or the trade secret rights of any third party in the United States. Additionally, Licensor shall pay any costs, damages, or awards of settlement, including court costs, arising out of any such claim, demand, or action, provided that Licensee promptly gives written notice of the claim, demand, or action to Licensor. The Licensor may at its election, either pay all of Licensee's fees and costs of defense or fully assume the defense of such claim, demand, or action. The limitations described in Sections 5.5 and 5.6 hereof shall not apply to indemnification pursuant to this Section 8.
b.In the event that Licensor elects to assume the defense of any such claim, demand, or action, it shall notify Licensee within ten (10 days of notification by Licensee to Licensor. If Licensor either elects not to assume the defense, or fails to notify Licensee within said ten (10) day period, then Licensee may assume the defense and/or settlement of any such claim at Licensor's cost and expense. If Licensor elects to assume the defense, then Licensee may monitor said defense and may retain counsel for this purpose at its own expense. If Licensee assumes the defense and/or settlement of such claim, then Licensor may monitor said defense and may retain counsel for this purpose at its own expense.
c.Undertakings If Infringement Found. In the event that the Subject Programs or any portion thereof, as furnished under this Agreement and used within the scope of the license hereunder, are held in such a suit or proceeding to infringe a third-party proprietary right as set forth in Section 8.1a, and that the use of the Subject Programs or portion thereof is enjoined, Licensor shall, at its sole option and expense (1) procure for Licensee the right to continue using the Subject Programs or portion thereof; (2) replace the same with non-infringing software of equivalent functions and efficiency; or (3) if the parties mutually agree, remove the Subject Programs or portions thereof. In the event that Licensor removes the Subject Programs pursuant to (3) above, the Licensee shall receive a refund of that portion of the fees paid pursuant to Section 2.1 as Licensor determines is reasonable.
Section 8 : TERM AND TERMINATION
8.1Term. This Agreement shall commence on the date first written above. All licenses hereunder shall be perpetual, unless earlier terminated according to this Section 9.
8.2Termination for Cause. Either party may terminate this Agreement at any time in the event of a material breach of the terms hereof by the other party if such party shall fail to cure such material breach within 30 days of receipt of written notice thereof, provided that if the parties disagree as to whether a breach is material, that question shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, instituted by service of notice of such arbitration by one party upon the other.
8.3Actions Upon Termination. Upon termination of the Agreement due to material breach by Licensee, or upon termination for any reason by the Licensee prior to completion of all payments to be made to Licensor under Section 2.1, Licensee shall immediately cease use of the Subject Programs and shall, within 10 days of such termination, deliver to Licensor all copies of the Subject Programs and related materials and documentation, or portions thereof furnished by Licensor hereunder. In such case, Licensee shall also warrant in writing that all use of Subject Programs or any portion thereof has been permanently discontinued. Upon termination of the Agreement, (except due to material breach by Licensor after final acceptance of the Subject Programs by the Licensee), Licensor's obligation to provide warranty or other services under this Agreement shall cease. Rights and remedies herein shall survive termination.
Section 9 : BANKRUPTCY
9.1Nature of License. The parties hereto agree that, for the purpose of the Bankruptcy Code, the Subject Programs are "intellectual property" within the meaning of 11 U.S.C. Section 101(52), and that the license created by this Agreement is a license of a right to intellectual property within the meaning of 11 U.S.C. Section 365(n).
9.2Rights of Licensee. In the event of bankruptcy, insolvency, receivership, or assignment for the benefit of creditors of Licensor, then, in addition to any right that may otherwise be available under the Bankruptcy Code, or otherwise at law or in equity, Licensee may perform any obligation that Licensor would otherwise be obligated to perform under this Agreement, and offset the cost of such performance against any payments or liabilities that otherwise might be due hereunder, to the extent that the Licensor is unwilling or unable to perform.
Section 10 : MISCELLANEOUS
10.1Force Majeure. Either party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure.
10.2No Agency. Licensor, in furnishing services to Licensee, is providing services as an independent contractor. The parties hereto are not, and will not hold themselves out as, the representative, agent, commission-sales agent, servant or employee of each other for any purpose. This Agreement creates no relationship of joint venture, partnership, limited partnership, or agency between the parties, and the parties hereby acknowledge that no other facts or relations exist that would create any such relationship between them. Neither party has any right or authority to assume or to create any obligation or responsibility on behalf of the other party except as may from time to time be provided in written instrument signed by both parties.
10.3Multiple Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties.
10.4Section Headings; Exhibits. The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. The exhibits and addendum’s referred to herein and attached, and to be attached hereto, are incorporated herein to the same extent as if set forth in full herein.
10.5Required Approvals. Where agreement, approval, acceptance, or consent by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
10.6No Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.