BY SIGNING ON, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE EQUIPO® SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS SET FORTH IN THE EQUIPO®SOFTWARE LICENSE AGREEMENT, INCLUDING BUT NOT LIMITED TO, ITS DEFINITIONS, WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, CONFIDENTIALITY PROTECTIONS AND TERMINATION PROVISIONS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THE EQUIPO® SOFTWARE, AND EXIT NOW.

 

LICENSE GRANT:  Company grants solely to You, a nonexclusive, non-transferable, limited user license for the Term set forth below, to: (i) install the Software on a server at Your Designated Location and workstation(s) within Your facilities; and (ii) for You and Your Affiliated Practices to use and execute the Software solely within the Territory. The total number of workstations accessing the Software shall not exceed five times the number of Provider Licenses purchased by You.

You may make copies of the Software for non-productive backup purposes as well as quality control, development, testing and other non-production purposes only, provided that You reproduce and include Company's copyright notice and proprietary legend on each backup copy.  Additionally, if You are running a hot backup/fail-over setup, You may also have such copies of the Software backed up on such setup that can be switched to a production basis on the failure of Your primary copy of the Software.   Each backup copy must be stored in a safe and secure location and protected by You.  All copies of all Software must be accounted for upon Company's request. Company will provide You with an electronic copy and one (1) hard copy set of the User Materials.  You may make and distribute solely to Your End-Users as many copies of the User Materials as is reasonably needed by You to utilize the Software.  If desired, You may purchase additional hard-copy sets of the User Materials from Company.

 

PROPRIETARY PROTECTION.  Company or its third party suppliers have sole and exclusive ownership of all rights, title, and interest in and to the Confidential Information, subject only to the right and license expressly granted to You herein.  This Agreement does not provide You with title or ownership of the Software, but only a right of limited, internal use. Your obligations with regard to Confidential Information shall survive termination of this Agreement for any reason and shall remain in full force and effect. The restrictions on disclosure of Confidential Information described above do not extend to any item of Confidential Information which (i) is publicly known by You at the time of its disclosure, (ii) is lawfully received by You from a third party not bound in a confidential relationship with Company, (iii) is published or otherwise made known to the public by Company or (iv) was generated or developed independently by You as demonstrated by Your records.  You may disclose Confidential Information to the extent required by law provided that You must give Company prompt written notice of it.  Confidential Information, means all proprietary and non-public information and data that concerns Company’s business, the Software, the User Materials, technology, systems, finances, personnel, operations, or other assets and activities of Company, including, but not limited to, trade secrets, ideas, processes, formulas, systems, source codes, data programs, other original works of authorship, know-how, improvements, discoveries, developments, designs, inventions, techniques, marketing plans, training and education materials and sessions, new products, licenses, rates, prices, costs and customer lists not available to the public.

 

TRADEMARK. Equipo® is a registered trademark of Equipo Health Inc. No right, license, or interest to such trademark is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademark.

 

LIMITATIONS ON USE, ETC.  Notwithstanding any other provision of this Agreement, You shall not: (i) reproduce, record, videotape, capture in electronic audio or video form, distribute, transmit, transfer, or disclose, directly or indirectly, in any form, by any means, or for any purpose, the Confidential Information, except You may disclose such Confidential Information to Your employees who need to know such information (ii) disclose or disseminate Confidential Information to a competitor or potential competitor of Company, (iii) copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Company in this Agreement, or in a separate written agreement signed by Company, (iv) use the Software for any purposes except as expressly permitted under this Agreement; (v) decompile, reverse assemble or otherwise reverse engineer the Software; (vi) import, add, modify or delete data in the Software database by any method other than direct data entry through the application, or through a Company developed Interface, unless approved by Company in advance and in writing; (vii) use the Software to process other than Your own data (viii) transfer, lease, assign, or sublicense Your Software license without Company's prior written consent, except for a transfer of the Software in its entirety to a successor in interest of Your entire business who assumes, in writing, the obligations of this Agreement; or (ix) install the server-portion of the Software anywhere but the Designated Location without Company's prior written consent (which will not be unreasonably withheld), provided that You may temporarily transfer the Software to another location in the event of an interruption of computer operations at the Designated Location. You authorize Company to enter Your premises in order to inspect the Software during regular business hours to verify compliance with the terms of this Agreement.

 

WARRANTY.  Company grants You a limited warranty that (i) Company has developed, owns, and/or possess all rights and interests in the Software necessary to enter into this Agreement; (ii) Company has full authority to execute and perform this Agreement; and (iii) Company's execution and performance of this Agreement will not violate any law or breach any other agreement known by Company.

 

Company also grants to You a limited warranty for one (1) year from the date of Software Installation ('Warranty Period') that the Software, unless modified by or on Your behalf, will substantially perform the material functions described in the User Materials when operated on Hardware and with the Third Party software purchased from, or pre-approved in writing by, Company in accordance with the User Material (the 'Express Warranty').  Company does not warrant that the Software will meet Your requirements, that the operation of the Software will be uninterrupted or error-free, or that all Software errors can be corrected.  Except for the Express Warranty during the Warranty Period, the Software is provided 'AS IS.' For any breach of the Express Warranty, Your sole and exclusive remedy, and Company's entire liability and obligation shall be, at Company's election, to correct the Software or the User Material, whichever is reasonably appropriate provided that no change may be made hereunder to the User Materials which modifies or deletes any material function of the Software.

 

You warrant that: (i) Your execution of this Agreement will not violate the terms of any pre-existing agreement(s) between You and a third party, (ii) You have full power and authority and is duly authorized to execute and perform the financial and non-financial obligations under this Agreement, and, (iii) if You are anything except an individual signing on Your own behalf, You have taken all of the necessary corporate action(s) in order to authorize and ratify Your execution and delivery of this Agreement and Your performance under the Agreement.

 

OTHER THAN AS EXPRESSLY SET FORTH ABOVE, COMPANY DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO YOU OR ANY OTHER PARTY WITH RESPECT TO THE SOFTWARE, THE USER MATERIAL, OR ANY SERVICES OR WORKS OF AUTHORSHIP PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY.  WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.

 

COMPANY PROVIDES NO WARRANTY ON ANY THIRD PARTY SOFTWARE AND/OR HARDWARE NOT MANUFACTURED BY COMPANY.  FURTHERMORE, YOU AGREE THAT, EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY SOFTWARE, THIRD PARTY SERVICES AND/OR HARDWARE IT PROVIDES TO YOU. IF ANY PROBLEM, OPERATIONAL FAILURE OR ERROR OF THE SOFTWARE HAS RESULTED FROM ANY ALTERATION OF THE SOFTWARE, ACCIDENT, ABUSE OR MISAPPLICATION, THEN, AT COMPANY’S SOLE OPTION, THIS WARRANTY SHALL BE NULL AND VOID.

 

LIMITATION OF LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES.  YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL COMPANY OR ANY OF COMPANY'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL OR LOST PROFITS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY HARDWARE, THIRD-PARTY SOFTWARE AND/OR SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

 

IN THE EVENT THAT THE SOFTWARE OR ANY REPORT OR INFORMATION GENERATED BY THE SOFTWARE IS USED IN CONNECTION WITH ANY DIAGNOSIS OR TREATMENT BY YOU AND/OR ANY OF YOUR EMPLOYEES, AGENTS, REPRESENTATIVES, AND THE LIKE, YOU AGREE TO ACCEPT ALL RESPONSIBILITY IN CONNECTION THEREWITH, INCLUDING RESPONSIBILITY FOR INJURY, DAMAGE AND/OR LOSS RELATED TO SUCH DIAGNOSIS OR TREATMENT.

 

IN NO EVENT WILL COMPANY'S LIABILITY IN THE AGGREGATE FOR ANY DAMAGES TO YOU OR ANY THIRD PARTY FOR ANY MATTER ARISING UNDER THIS AGREEMENT EVER EXCEED THE SOFTWARE LICENSE FEES PAID BY YOU TO COMPANY HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

 

Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to you.

 

You are a sophisticated purchaser and acknowledge and agree that the allocation of risks in this Agreement is reflected in the Software License fees, that Company is unable to test the Software under all possible circumstances, that Company cannot control the manner in which You shall use the Software, and that the allocation of risks under this Agreement are reasonable and appropriate under the circumstances.

 

GOVERNING LAW. This Agreement is made under, and in all respects shall be interpreted, construed and governed by, and in accordance with, the laws of the State of California.  Any cause of action arising out of or related to this Agreement may only be brought in the local court of applicable jurisdiction in the State of California, Orange County, and You hereby submit to the jurisdiction and venue of such court.

 

U.S. Government Restricted Rights.  Materials are provided with RESTRICTED RIGHTS.  Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the commercial Computer Software - Restricted Rights at 48 CFR 52.227.19, as applicable.

 

EXPORT/FOREIGN GOVERNMENT RESTRICTION.  You may not export or re-export the Software without Company’s prior written consent and without the appropriate United States and foreign government licenses. Neither the Software, nor any technical data contained therein, nor any portion thereof may be exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  You hereby represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list. You further agree to indemnify and hold harmless Company and its officers, directors, shareholders, employees, agents and representatives against any and all costs, liabilities, damages, losses or expenses (including, without limitation, attorneys’ fees) arising from, or relating to any asserted violation by You of any of the laws and administrative regulations of the United States relating to the control of exports of commodities and technical data.

 

Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.

 

SEVERABILITY. Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.

 

No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.