SOAPware License Agreement

   

 

SOAPWARE LICENSE AGREEMENT

   

  

   

READ THIS LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING THE LICENSED

   

SOFTWARE, AS HEREIN DEFINED. BY INSTALLING AND USING THE LICENSED PRODUCT, AS HEREIN

   

DEFINED, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS OF THE FOLLOWING AGREEMENT.

   

THESE TERMS APPLY TO YOU AND ANY SUBSEQUENT LICENSEE OF THE LICENSED PRODUCT. IF YOU

   

DO NOT ACCEPT OR AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST RETURN THIS PACKAGE

   

AND ALL THE MATERIALS AND SOFTWARE YOU RECEIVED WITHIN TEN (10) DAYS OF RECEIPT WITH

   

PROOF OF PAYMENT TO SOAPWARE, INC. ("LICENSOR").

   

  

   

1. Definitions

   

As used herein, the following definitions shall apply:

   

(a) "Licensed Product" shall mean collectively the Licensed Software and Licensed Documentation (as hereinafter defined).

   

(b) "Licensed Software" or "Software" shall mean the medical software under the brand name "SOAPware", including all updates and revisions thereto supplied by Licensor during the term hereof and all permitted copies of the foregoing.

   

(c) "Licensed Documentation" shall mean all documentation, other than the Licensed Software, that is related to such Software.

   

(d) "Use" shall mean the reading into and out of memory of the Licensed Software and the execution of such Software, in whole or in part, for the internal purposes of Licensee; it being understood and agreed that "Use" shall not include providing data processing services to third parties.

   

(e) "Distributor" shall mean any individual or entity who has executed a Distributor Agreement with Licensor, for the demonstration, marketing, distribution and licensing of the Software.

   

(f) "Seller" shall mean any individual or entity who sells and licenses the Software to the Licensee, who will be either a Distributor or the Licensor.

   

  

   

2. License

   

Subject to the payment of the license fees and charges to Licensor, Licensor hereby grants to Licensee, the Licensee hereby accepts, a nonexclusive license to Use the Licensed Software during the term hereof and to use the Licensed Documentation during the term hereof in support of the Use of the Licensed Software.

   

  

   

3. License Fees, Charges and Taxes

   

(a) The license fees and charges for the license herein granted to Licensee shall be the then current license fees and charges of Seller for the Licensed Product in effect as of the date of this Agreement.

   

(b) The license fees and charges, taxes and other applicable charges shall be due and payable within five (5) days after Licensee's receipt of the invoice therefore. Licensee shall pay a late payment charge equal to the maximum rate permitted by applicable law on any unpaid amount for each calendar month or fraction thereof that any payment to Licensor is in arrears.

   

(c) Licensee shall pay all taxes based on or in any way measured by this License Agreement, the Licensed Product or any portion thereof, or any services related thereto, excluding taxes based on Seller's net income, but including personal property taxes, if any.

   

  

   

4. Term of License Agreement and Licenses

   

Unless otherwise terminated or canceled as provided herein, the term hereof and of the licenses granted herein shall commence as of the date of this Agreement and shall continue until Licensee discontinues the licensed Use of the License Software.

   

  

   

5. Protection of Licensed Product

   

(a) Licensee acknowledges and agrees that the Licensed Product and all permitted copies thereof are the exclusive property of Licensor and its affiliates, and constitute a valuable trade secret of Licensor and its affiliates. Licensee may not disclose or make available to third parties the Licensed Product or any portion thereof without Licensor's prior written consent, except under appropriate nondisclosure agreements with third parties who are performing services for Licensee.

   

(b) Upon any termination, cancellation or expiration hereof, Licensee shall immediately return the Licensed Product and all copies thereof to Licensor.

   

  

   

6. Reproduction and Modification of Licensed Product

   

(a) Licensee may reproduce the Licensed Software for Use. All copies of the Licensed Software, in whole or in part, shall contain all of Licensor's restrictive and proprietary notices as they appear on the copies of Licensed Software provided by Licensor. In no event shall Licensee have the right to duplicate, in whole or in part, the Licensed Documentation.

   

(b) Licensee may modify the Licensed Software and merge it into existing software, provided such modified Software and resulting merged software shall be deemed to be a Licensed Product subject to all of the terms and conditions hereof. Upon any termination, cancellation or expiration hereof or any license granted hereunder, Licensee shall remove the Licensed Software and the resulting merged software, and Licensee shall have no right thereafter to Use the Licensed Software or any portion thereof.

   

(c) Licensee is specifically prohibited from reverse engineering and disassembly of the Licensed Software.

   

  

   

7. Shipments and Packaging

   

(a) Seller shall select the mode of shipment of the Licensed Product. If Licensee desires a different mode of shipment, it shall advise Seller thereof and Licensee shall pay Seller all costs associated therewith.

   

(b) The Licensed Product shall be packaged in accordance with Seller's then current packaging specifications, for the mode of shipment selected by Seller, and the cost of such packaging shall be included in the license fees and charges. If Licensee desires or requires different or special packaging, Licensee shall advise Seller thereof, shall assume all liability therefore, and shall pay Seller all costs associated therewith.

   

(c) The Licensed Product shall be delivered f.o.b. Seller's shipping point, and thereafter Licensee shall assume all risk of loss therefore.

   

  

   

8. Services

   

(a) Licensee shall have the sole and exclusive responsibility for the selection, installation and Use of the Licensed Product. Seller shall provide Licensee with technical support and services and maintenance under the terms and conditions contained herein at Seller's then current charges therefore.

   

(b) During the first year hereof Seller shall use its best efforts to correct any error, malfunction or defect that may appear in the Licensed Software, provided that Licensee shall give Seller written notice thereof during such period.

   

(c) During the term of this Agreement, Seller will assist the Licensee in the Use of the Licensed Software, in keeping the Licensed Software in compliance with hardware changes made by the manufacturer of such hardware, and in keeping the Licensed Software compatible with the then current version of the operating system of the Licensee's CPU's, as requested by the Licensee.

   

  

   

9. Negation of Warranty

   

The licensed product is provided on as "as-is" basis, and there are no warranties, express or implied, including, but not limited to, any warranty of merchantability or fitness for particular purpose. Licensee shall be solely responsible for the selection, use, efficiency and suitability of the licensed product and Licensor shall have no liability therefore.

   

  

   

10. Negation of Proprietary Rights Indemnity

   

Licensor shall have no liability to Licensee for the infringement of proprietary rights by the Licensed Product or any portion thereof.

   

  

   

11. Limitation of Liability

   

(a) In no event shall Licensor be liable to Licensee for any indirect, special or consequential damages or lost profits arising out of or related to this License Agreement or the performance or breach hereof, even if Licensor has been advised of the possibility thereof. Licensor's liability to Licensee hereunder, if any, shall in no event exceed the total of the license fees paid to Licensor hereunder by Licensee.

   

(b) In no event shall Licensor be liable to Licensee for any damages resulting from or related to any failure of the software products, including, but not limited to loss of data, or delay of the licensor in the delivery of the licensed product or in the performance of services under this License Agreement or related agreements.

   

  

   

12. Termination/Cancellation

   

(a) Licensor may terminate/cancel this License Agreement and any license granted to Licensee hereunder if:

   

(1) Licensee fails to pay Seller any license fees or charges;

   

(2) Licensee is in default of any other provision hereof and such default has not been cured within ten (10) days after Licensor or Seller gives Licensee written notice thereof; or

   

(3) Licensee becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law.

   

(b) In the event of any termination/cancellation hereof or of any license granted to Licensee hereunder, Licensor or Seller may:

   

(1) Declare all amounts owed hereunder to Licensor to be immediately due and payable;

   

(2) Require that Licensee cease any further use of the Licensed Product or any portion thereof and immediately return the Licensed Product and all copies thereof, in whole or in part; and,

   

(3) Cease performance of all Licensor's obligations hereunder without liability to Licensee.

   

(c) Licensor's and Seller's foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to Licensor in law and in equity.

   

  

   

13. General

   

(a) The effective date of this Agreement shall be upon execution thereof by Licensee and acceptance thereof by an authorized representative of Licensor.

   

(b) Any claim arising out of or related to this Agreement must be brought no later than one year after it has accrued.

   

(c) This Agreement is the sole agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, of either party. This Agreement may be amended only by a writing executed by the authorized representatives of both parties.

   

(d) This Agreement and the licenses granted hereunder may not be transferred or assigned by Licensee without the prior written consent of the Licensor.

   

(e) This Agreement shall be interpreted in accordance with the substantive laws of the State of Arkansas.