Beta Test End-User License Agreement

This Beta Test End-User License Agreement (this "Agreement"), effective as of the date of electronically agreeing to this Agreement (the "Effective Date"), is by and between Radformation, Inc. ("Radformation") on behalf of itself and its Affiliates, and the Beta User ("Licensee"). Radformation and Licensee may be referred to herein collectively as the "Parties" or individually as a "Party."

WHEREAS, Radformation and its Affiliates (as defined below) have created and license certain software described in greater detail at Exhibit A (the “Software”); and

WHEREAS, Radformation desires to license the Software for testing purposes and Licensee is willing to accept such a license, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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  1. Definitions. "Affiliates" means those entities, businesses, or enterprises that directly or indirectly, control or are controlled by, or are under common control with, the specified party. For the purpose of this definition, control means (i) the legal or beneficial ownership of (A) fifty (50) percent or more of the outstanding voting stock of a company, (B) fifty (50) percent or more of the equity of a company, partnership, or joint venture, or (C) a general partnership interest in a partnership or joint venture; or (ii) the power to exercise a controlling influence over the management or policies of an entity

  2. Grant of License. Radformation hereby grants Licensee a nonexclusive, nonsublicensable, nontransferable license, to use the Software internally within Licensee for testing during the Term (as defined below).

  3. Rights and Limitations.

    1. Licensee acknowledges and agrees that the Software is being provided under this Agreement solely for the purposes of testing and non-commercial/clinical use. Licensee agrees to solely use the Software for Licensee’s internal use and will not provide access to the Software or its components to anyone outside of Licensee. Nothing herein shall obligate either Radformation or Licensee to enter into any further license agreement relating to the Software. Without limiting the generality of the foregoing, Licensee shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software in any way; (ii) make copies, modify or make derivative works based upon the Software, except as expressly permitted under the license granted in Section 1; (iii) reverse engineer, decompile, disassemble, or reconfigure the Software; (iv) access the Software in order to build a competitive product or service; (v) use the Software to send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (vi) intentionally interfere with or disrupt the integrity or performance of the Software.

    2. Licensee is solely responsible and liable for all uses of the Software by Licensee or any person obtaining access to the Software through Licensee. Without limiting the generality of the foregoing: Licensee is solely responsible for all diagnoses, treatment plans, and treatments (as well as decisions not to provide treatments) that are developed or performed in connection with use of the Software. Licensee acknowledges and agrees that it is and shall be Licensee’s obligation to verify the accuracy and applicability for each patient, in each instance, of any treatment plan, treatments or diagnoses made using the Software, and in general to determine the suitability of the Software for Licensee’s intended use.

  4. Payments. Licensee agrees to pay Radformation those fees, if any, identified by Radformation concurrently when receiving the Software. All fees paid under this Agreement are non-cancelable and the sums paid are nonrefundable. Licensee agrees to pay any sales, value-added or other similar taxes imposed by applicable law for the right to access the Software.

  5. Maintenance; Updates. Radformation may from time-to-time, and in its exclusive discretion, update the Software in order to, among other things, correct errors or bugs, improve the performance of the Software or increase the functionality of the Software. Licensee acknowledges that such updates may change or modify certain functions or features of the Software. Radformation shall not be liable to Licensee for any specific changes to the features or functionality of the Software and Licensee’s exclusive recourse if it is not satisfied with any update or improvement is to stop using the Software. Radformation may, at its option, provide such updates to Radformation at no charge or require the payment of a license fee to access and use the updated Software. Nothing herein shall obligate Radformation to provide any maintenance or support for the Software and nothing herein shall be interpreted as granting Licensee a right to receive any upgrades, patches, enhancements, bug fixes, new versions, or new releases of the Software.

  6. Feedback. Licensee agrees to reasonably cooperate with Radformation to provide its feedback concerning the functionality and performance of the Software. Licensee further agrees that any suggestions, comments, feedback, ideas, or suggested modifications Licensee or its authorized users provide Radformation concerning the Software during the Term (collectively “Feedback”) shall belong exclusively to Radformation and Radformation will be free to use the same without attribution or accounting to Licensee.

  7. Intellectual Property. Licensee acknowledges and agrees that the Software is being licensed to Licensee, not sold, and that other than the limited license granted herein, Licensee shall have no right, title, or interest in or to the Software. As between Radformation and Licensee, all rights, title, interests, including without limitation, any patent, trademark, copyright, or other intellectual property rights in and to the Software and any improvements or modifications thereto, and to the Feedback, are owned by and remains with Radformation. Except for Radformation’s rights in the Software and Feedback, as between Radformation and Licensee, all rights, title, interests, including without limitation, any patent, trademark, copyright, or other intellectual property rights in and to any data or information provided by Licensee through the Software are owned by and remains with Licensee.

  8. Warranty/Limitation of Liability.

    1. Disclaimer. THE SOFTWARE IS OFFERED TO LICENSEE “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED.

    2. Limitation of Liability. THE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES, AND NEITHER PARTY SHALL HAVE ANY LIABILITY TO LICENSEE FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE ENTIRE LIABILITY OF RADFORMATION OR ITS AFFILIATES WITH RESPECT TO ANY CLAIM ARISING UNDER THIS AGREEMENT OR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, EXCEED $100 OR THE FEES AND COSTS ACTUALLY PAID BY LICENSEE TO RADFORMATION DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

  9. Termination.

    1. This Agreement will commence upon the Effective Date and shall continue in full force and effect until terminated as provided herein (the “Term”).

    2. Either party may terminate this Agreement, effective immediately: (i) upon mutual consent; (ii) upon thirty (30) days prior written notice to the other party; or (iii) in the event the other party materially breaches this Agreement and does not cure such breach within ten (10) days of written notice from the non-breaching party setting forth the nature of the material breach. Licensee may also terminate this Agreement by deleting the Software and not making any further use of the Software.

    3. Upon termination of this Agreement for any reason, Licensee shall immediately discontinue all use of the Software. Thereafter, Licensee shall have no further right, license, or privilege to access, or use the Software or its components. Those portions of the Agreement that must survive in order to give effect to its essential purpose, will survive termination of this Agreement.

  10. Confidentiality. Each party acknowledges that by reason of its relationship to the other party under this Agreement it may have access to the Confidential Information of the other party. Confidential Information means non-public information disclosed by one party to the other pursuant to this Agreement including, without limitation, the terms of this Agreement, ideas, trade secrets, procedures, methods, systems, concepts, program code, user interfaces, displays, file layouts, algorithms, inventions, know-how, data, operational, business and all similar information of the party, whether disclosed orally or in writing or by any other media. Each party agrees to maintain in confidence and use only as expressly permitted in this Agreement all Confidential Information received from the other, both orally and in writing, provided that the parties' obligations of non-disclosure under this Agreement shall not apply to Confidential Information which the receiving party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) was rightfully in the receiving party's possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party without reference to Confidential Information; or (v) is required to be disclosed by law. The terms of this section shall survive the termination or expiration of this Agreement. Upon termination of this Agreement, each party shall immediately cease using all Confidential Information of the other party in its possession and promptly return or destroy all tangible embodiments of Confidential Information.

  11. Protected Health Information. Radformation does not require access to any personally identifiable information about Licensee’s patients, including without limitation Protected Health Information or Individually Identifiable Health Information as those terms are defined under HIPAA, in order to perform its obligations under this Agreement, and Licensee shall ensure that no such information is disclosed to or accessible to Radformation.

  12. Miscellaneous.

    1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.

    2. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

    3. Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without Radformation’s express written consent. Any attempted assignment in violation of this provision shall be void ab initio. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

    4. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Delaware, without reference to such State’s principles of conflicts of law. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the Sale of Goods.

    5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

    6. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.