Standard Software End User License Agreement
This end user software license agreement (the “agreement”) is made and entered by and between Paxerahealth Corp. (“licensor”) and you, your or End User (“End User”)
Please read this End-user License Agreement ("Agreement") carefully before clicking the "I Agree" button, downloading or using PaxeraViewer ("Application"). By clicking the "I Agree" button, downloading or using the Application, you are agreeing to be bound by the terms and conditions of this Agreement. If you do not agree to the terms of this Agreement, do not click on the "I Agree" button and do not download or use the Application.
PaxeraHealth Corp. grants you a revocable, non¬exclusive, non¬transferable, limited license to download, install and use the Application solely for your personal, non¬commercial purposes strictly in accordance with the terms of this Agreement.
You agree not to, and you will not permit others to: a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Application or make the Application available to any third party.
PaxeraHealth Corp. reserves the right to modify, suspend or discontinue, temporarily or permanently, the Application or any service to which it connects, with or without notice and without liability to you.
This Agreement shall remain in effect until terminated by you or PaxeraHealth Corp.
PaxeraHealth Corp. may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice. This Agreement will terminate immediately, without prior notice from PaxeraHealth Corp., in the event that you fail to comply with any provision of this Agreement. You may also terminate this Agreement by deleting the Application and all copies thereof from your mobile device or from your desktop. Upon termination of this Agreement, you shall cease all use of the Application and delete all copies of the Application from your mobile device or from your desktop.
- Grant of License subject to the terms and conditions of this agreement, licensor grants to the end user, and end user accepts, a non-exclusive, nontransferable right and license to use the Paxera view software and any modifications or replacements of any PAXERAVIEWER Software or Documentation provided to End User by Licensor pursuant to the Support Services as defined in Section 8 below. This Agreement does not authorize End User to Use the PAXERAVIEWER Software or the Documentation (or any portion thereof) for any other purpose. In jurisdictions in which transfer is permitted, notwithstanding the foregoing prohibition, transfers will only be effective if End User transfers a copy of this Agreement, as well as all copies of the PAXERAVIEWER software and Documentation, whereupon End User's license to use the PAXERAVIEWER software will terminate.
- Installation. End User may install the PAXERAVIEWER Software on the computer identified in Exhibit 1 (the "Designated Processor") that is located at the site specified in Exhibit 1 (the "Site") and owned by End User or leased by End User (provided that in the case of any leased computer, the agreement under which such computer is leased must include provisions providing that the lessor (and its assigns) shall have no rights with respect to possession or use of the PAXERAVIEWER Software as installed on such computer and shall be obligated to remove (or permit End User to remove) the PAXERAVIEWER Software upon any repossession of the computer). End User shall notify Licensor 'if End User wishes to install the PAXERAVIEWER Software on any processor other than the Designated Processor, and upon payment of the applicable fees, this Agreement will be amended to cover such changes.
- Except as specifically permitted in this Agreement, End User shall not directly or indirectly: (i) use any PAXERAVIEWER Software or Documentation to create any software or documentation that is similar to any of the PAXERAVIEWER Software or Documentation; (ii) attempt to create or permit others to attempt to create, by reverse compiling or reverse assembling or otherwise, any part of the PAXERAVIEWER Software source programs from the PAXERAVIEWER Software object programs or other information provided End User by Licensor (iii) encumber, transfer, rent, lease, time-share or use the PAXERAVIEWER Software in any service bureau arrangement; or (iv) copy (except for one copy of the PAXERAVIEWER Software and the Documentation for archival or back up purposes), distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify PAXERAVIEWER Software or permit any third party to engage in any of the foregoing.
- This Agreement does not convey to End User any ownership rights in any portion of any PAXERAVIEWER Software or Documentation, or other System components or any copies thereof, but constitutes only a license to use the PAXERAVIEWER Software and Documentation in accordance with all of the terms of this Agreement. Title to the PAXERAVIEWER Software (and each copy, thereof) and the Documentation (and each copy thereof), and the right to grant licenses to use the PAXERAVIEWER Software or the Documentation, shall at all times remain vested in PAXERAVIEWER. Title to all other computer programs, data, and proprietary information supplied to End User by Licensor and all' copies, of all or any revision or portion thereof, and all proprietary and intellectual property rights embodied therein (whether or not protectable under state, federal or foreign patent, copyright, trade secrecy or similar laws), shall remain vested in PAXERAVIEWER at all times. PAXERAVIEWER is direct and intended third party beneficiary of this Section 3 and may enforce it directly against the End User.
- Term and Termination. This Agreement is effective from the date of receipt and installation of the PAXERAVIEWER Software and Documentation and will remain in force until termination pursuant to the terms hereof. End User may terminate this Agreement at any time. This Agreement will also terminate if End User breaches any of the terms or conditions of this Agreement, which breach is not cured within 30 days after written notice is received by the End User specifying, in reasonable detail, the nature of the default; provided that the time to cure a default shall extend for up to 30 additional days if the End User has promptly commenced to cure the default and continues to use commercially reasonable efforts to cure such default during the additional 30-day period. The time period during which any matter is in dispute shall not be counted in determining the lapse of the two (2) 30-day periods referenced above. End User agrees that in the event of termination of this Agreement for any reason, End User's license rights to the PAXERAVIEWER Software and the Documentation shall immediately terminate and End User will destroy all copies of the Software, installed or otherwise, and the Documentation that are in End User's possession or under End User's control. Licensor reserves the right to disable (including remotely) the Software in the event of an uncured breach of this Agreement by the End User. The provisions of Section 3 (Limitations), Section 5 (Warranties and Indemnifications), Section 6 (Limitations of Liability), Section 9 (Confidentiality), Section II (General), Section 11 (Intellectual Property, Indemnification, Mitigation and Prorated Refund) and this Section 4 shall survive any termination or expiration of this Agreement.
- Warranties and Indemnification. Licensor warrants that the PAXERAVIEWER Software will perform substantially in accordance with the functionality described in the applicable Documentation under normal use while the license to End User hereunder is in effect and complies with all applicable laws, regulations, ordinances and codes. It is the sole and exclusive responsibility of End-User to determine the suitability of any and all PAXERAVIEWER Software for End User's intended purposes and uses. End User's limited warranties with respect to the components of the System purchased from third party suppliers, including Hardware, are governed by the end-user license agreements for such Hardware or other System components that are shipped with, or appear upon installation of, such Hardware or components. Licensor's warranty is limited and shall not apply to: any PAXERAVIEWER Software where the failure of the PAXERAVIEWER Software to satisfy this warranty is determined by Licensor, in its reasonable judgment; to result from (i) improper use, neglect, accident, or improper installation of the PAXERAVIEWER Software not otherwise arising out of or directly caused by Licensor, (ii) combination with products other than those of Licensor without the prior consent of Licensor, (iii) repairs or modifications to the PAXERAVIEWER Software made by persons other than Licensor's or its designee's own authorized service personnel, unless such repairs by others are made with the prior written consent of Licensor or its designees; or (iv) failure to implement all Upgrades previously offered to End User by Licensor.
- Limitations of liability.
- The above warranties and other warranties stated herein are the only warranties of any kind made by licensor with respect to the PAXERAVIEWER software and documentation, and licensor hereby expressly disclaims all other warranties, either express or implied, including warranties of merchantability or fitness for any particular purpose. Licensor does not warrant that (i) the PAXERAVIEWER software will meet end user's requirements, (ii) or operation of the PAXERAVIEWER software will be uninterrupted or error free.
- licensor's and end user's liability for damages to the other for any cause whatsoever, regardless of the form of any claim or action, shall not exceed the aggregate license fees and support fees paid by end user for the software and service, provided,
- Licensor and end user shall not be liable to the other for any loss of profits, loss of use, loss of data, interruption of business, nor for indirect, special, incidental, consequential or exemplary damages of any kind, whether under this agreement or otherwise arising in any way in connection with the PAXERAVIEWER software, the documentation or this agreement. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion or limitation may not apply. These limitations are independent from all other provisions of this agreement and shall apply notwithstanding the failure of any remedy provided herein.
- Export Laws. The parties will comply with all export laws' and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained to the countries specified in the applicable U.S. Export Administration Regulations (the "EAR") or any successor supplement or regulations. In particular, if the Territory includes geographic areas outside the United States, the parties agree, pursuant to 15 CFR §740.6(a)(2) of the EAR (or any successor supplement or regulation), that neither such party will (i) re-export or release the PAXERAVIEWER Software and other System components or the source code for the PAXERAVIEWER Software and other System components to a national of a country as described in Country Groups D:l or E:2 of IS CFR PI. 740, Supp. I of the EAR ("Prohibited Countries") or (ii) export the direct product of the PAXERAVIEWER Software or any Hardware or other System components to any Prohibited Country, if such foreign produced direct product is subject to national security controls as identified on the Commerce Control List of the EAR, pursuant to Gener3.I Prohibition Three, 15 CFR section 736.2(b)(3) of the EAR (or any successor supplement or regulation). The composition of Country Groups D: I and E:2 is established by U.S. federal regulations and therefore is subject to change.
- Confidentiality. Licensor and End User (each, as a "Receiving party") shall limit access to confidential information (the "Confidential Information") received or obtained from the other party (the "Disclosing party") pursuant to this Agreement, to those of their employees, agents, independent professionals (i.e., auditors and attorneys) or accrediting bodies who need to have access to such information or material and who are obligated to maintain confidentiality sufficient to protect the other party's rights in its Confidential Information, and shall not use or permit to be used such Confidential Information by or for the benefit of itself (except as anticipated by this Agreement). Unless otherwise specified in writing, all Confidential Information is provided “As Is,” with all faults included, and neither party makes any express representation or warranty regarding its Confidential Information. Each party agrees not to (i) copy any Confidential Information of the other party except specifically to fulfill the intended purpose of this Agreement, in which case that party shall include, when reasonably possible, in any and all copies made all copyright, trademark, and other notices placed on the Confidential Information by the Disclosing party, however, Confidential Information shall include nonpublic information that a reasonable person would consider as confidential. Neither party is obligated to update any Confidential Information or disclose any particular item of information. Confidential Information shall not include (i) information that is generally available to the public not as a result of a breach of the Receiving party's confidentiality obligations herein, (ii) information that is lawfully received by the Receiving party from a third party that is not under a non-disclosure obligation with respect to such information, and (iii) information that was known by the Receiving party prior to receipt from the Disclosing party, as evidenced in the Receiving party's books and records. Each party shall exercise reasonable care, including measures at least equivalent to the care it uses to protect its own valuable confidential information, in order to prevent the disclosure of the other party's Confidential Information to independent third parties other than those referenced in the first sentence of this Section 10. Each party shall promptly notify the other party of any actual or suspected unauthorized use or disclosure of the other party's Confidential Information of which it has knowledge and will cooperate in the investigation of and appropriate actions with respect to such unauthorized use or disclosure. Each party shall include the other party's reasonable proprietary rights notices on any media embodying the other party's Confidential Information, including partial copies thereof, which are circulated within that party. Each Receiving party shall inform the Disclosing party of any request by a government (including judicial) authority to disclose any of disclosing party's Confidential Information prior to responding to such request. If the Disclosing party informs Receiving party that the Disclosing party opposes the request for disclosure, then Receiving party shall (at Disclosing party's expense) support any of Disclosing party's reasonable efforts to oppose such request and shall disclose Disclosing party's Confidential Information only in the event of a final judgment or administrative, judicial or other applicable order requiring such disclosure, and only to the extent necessary to comply with such request. Notwithstanding anything to the contrary contained in the foregoing, the parties acknowledge that personal health information that End User provides to Licensor or that Licensor has access to shall be deemed Confidential Information without exception or exclusion. The parties acknowledge that Licensor is a "Covered Entity" as that term is defined in the regulations promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") as contained in 45 C.F.R. Parts 160,162 and 164 ('the HIPAA Privacy and Security Rules"). Licensor agrees to comply with the HIPAA Privacy and Security rules and the provisions of the Business Associate Agreement entered into by the parties’ contemporaneously. Licensor shall also require and ensure that its agents, employees and contractors comply with the HIPAA Privacy and Security. Rules and the provisions of the Business Associate Agreement.
- Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the laws of Massachusetts without taking into account its principles on conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. With respect to any action instituted by either party relating to this Agreement, the parties accept the exclusive jurisdiction of the courts of the state of Massachusetts, and agree that venue shall lie exclusively in Boston, Massachusetts.
- Intellectual Property Indemnification, Mitigation, and Prorated Refund. Licensor represents and warrants to End User that Licensor owns the Software or by way of license or other agreement has the right to license the Software to End User. Licensor shall indemnify, defend, and hold End User harmless from any claim, action, loss, damage, liability, cost or expense (including, without limitation, reasonable attorney's fees) incurred by or alleged against End User arising out of or resulting from any allegation that the PAXERAVIEWER Software, the Documentation or any other materials provided by Licensor to End User infringes upon or misappropriates the copyright, trademark, or any other intellectual property right of a third party. Licensor’s obligation to indemnify shall survive the expiration or termination of this agreement. and shall not exceed the aggregate license fees and support fees paid by end user for the software and service, provided
- Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing non-performance of any obligation by either Party to make payment to the other Party under this Agreement.
- Entire Agreement and Modification. This Agreement constitutes the entire understanding of the parties with respect to the matters covered herein, and supersedes all prior and contemporaneous agreements, representations, and Discussions, whether oral or written. This Agreement may only be altered, amended or modified by a written instrument duly executed by the parties.
- Successors. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
- The Agreement shall not be construed to grant any license or other rights except as specified herein.
- Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed given and received (i) when personally delivered with a written receipt obtained, (ii) on the date received, refused or uncollected if sent by certified or registered mail, return receipt requested, postage prepaid, or (iii) the earlier of receipt or two (2) business days after deposit with a nationally overnight delivery service (e.g., Federal Express), at the addresses set forth below, or to such other address that a party provides to the other party pursuant to the provisions of this paragraph.
- Counterparts and Signatures. This Agreement may be executed in multiple parts and each counterpart shall be deemed an original, and all of which together shall constitute but one agreement. Electronic or electronically transmitted signatures will be considered originals.
- This is a free download version for personal use only, using this version for commercial purposes will make the user liable and subject to legal consequences
|As to Licensor:
300 washington street, Newton, MA 02458