SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "Agreement"), by and between the entity ("Customer") named in the Radformation Order Form (the "Order Form") and Radformation, Inc., a Delaware corporation ("Radformation"), is effective as of the date set forth in the first Order Form between Customer and Radformation (the "Effective Date").
In consideration of Radformation's engagement hereunder to provide the Software described in the Order Form, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following terms and conditions:
Whenever used in this Agreement, the capitalized terms quoted below will have the meaning ascribed to them in this Section, except as otherwise expressly stated.
1.1. "Authorized Users" means Representatives of Customer who are qualified to design radiotherapy treatment plans and whom Customer selects and authorizes to use the Software and Documentation.
1.2. "Client" means a computer, workstation, or Citrix server through which Authorized Users access the Software from the Licensed Server.
1.3. "Documentation" means user manuals, technical manuals, and any other materials provided by Radformation, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
1.4. "HIPAA" means the Health Insurance Portability and Accountability Act of 1996 (as amended) and its implementing regulations.
1.5. "Intellectual Property Rights" means all proprietary information, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the Software and Documentation.
1.6. "License Fees" means the annual license fees specified in the Order Form or as subsequently amended in accordance with the terms of this Agreement.
1.7. "Concurrent Users" means all user instances that are logged on to access the Software at any given time.
1.8. "Licensed Server" means each secure network server, owned or leased by Customer and controlled by Customer, on which the Software and Documentation is installed in accordance with this Agreement.
1.9. "Maximum Number" means the number of Licensed Servers or Concurrent Users, as the case may be, specified in the Radformation Order Form, as it may be amended from time to time by agreement of the Parties.
1.10. "Parties" means Radformation and Customer.
1.11. "Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
1.12. "Product Specifications" means the technical and performance functions of the Software, as specifically set forth in the Product Specifications Section of the Documentation.
1.13. "Authorized Purpose" means the development and implementation of radiation therapy treatment plans for the treatment of patients.
1.14. "Release" means a new edition of the Software and Documentation, as designated by Radformation.
1.15. "Representative" means, with respect to Customer, an employee, officer, director, consultant, agent, independent contractor, or subcontractor of Customer.
1.16. "Basic Support" means the Software support and maintenance services described in Exhibit A.
1.17. "Special Support" means any support and maintenance services for the Software that are requested by Customer and agreed to by Radformation that are outside the scope of Basic Support.
1.18. "Software" means the Radformation software specified in the Radformation Order Form and all subsequent Releases, Updates, and Patches supplied by Radformation to Customer pursuant to this Agreement.
1.19. "Third Party" means any Person other than Customer or Radformation.
1.20. "Patches" means bug fixes, patches, and other error corrections to the Software that are made generally available by Radformation at no additional cost to the licensees of the Software.
1.21. "Updates" means upgrades, enhancements, and improvements to the features or functionality of the Software that are released by Radformation as Updates.
2. Grant of License; Ownership
2.1. Grant. Radformation hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, license during the Term to use the Software and Documentation for the Authorized Purpose (the "License"), subject to the terms and conditions of this Agreement.
2.2. Permitted Uses. The License grants Customer the right to:
(a) install a single copy, in object code form, of those components of the Software and the Documentation provided on an installed basis, on one or more Licensed Servers (not exceeding the Maximum Number of Licensed Servers);
(b) allow Authorized Users (not exceeding the Maximum Number of Concurrent Users) to access and use the Software and Documentation solely for the Authorized Purpose.
(c) make one copy of any installed Software and one copy of the Documentation solely for archival purposes, provided that: (i) Customer shall not, and shall not allow any Person to, install or use such copies of the Software unless (and only for so long as) the previously installed Software and Documentation are inoperable and have been uninstalled and deleted; and (ii) all copies of the Software or Documentation made by the Customer include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original. All such copies shall be the exclusive property of Radformation, will be subject to the terms and conditions of this Agreement
2.3. Restrictions. Customer will not, and will not permit any Person to: (a) use the Software or Documentation for any purpose other than the Authorized Purpose; (b) modify, translate, adapt, or otherwise create derivative works or improvements or modification to the Software or Documentation or any part thereof; (c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof, or attempt to do so; (e) remove, delete, alter, or obscure any trademarks or any notices of Radformation's Intellectual Property Rights provided on or with the Software or Documentation; (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection or other security features that the Software may contain, or attempt to do so; (g) except as expressly set forth in Section 2.2, copy the Software or Documentation, in whole or in part; or (h) use the Software or Documentation in violation of any applicable law, regulation, or rule, including without limitation HIPAA.
2.4. Ownership; No Other Rights. As between Radformation and Customer, Radformation owns and shall retain all title and ownership to the Software, the Documentation, and any copies thereof in any form, and all Intellectual Property Rights therein. The Parties acknowledge and agree that this Agreement is a license to use, and not a sale, or contract of sale, for the Software and Documentation. Apart from the limited license rights expressly granted in this Agreement, Customer does not receive any ownership, license or other interest in the Software or the Documentation or any portion thereof, all of which are reserved by Radformation. Customer will promptly notify Radformation if Customer becomes aware of any unauthorized use of the Software or other infringement of Radformation's Intellectual Property Rights and fully cooperate with Radformation, at Radformation's expense, in any legal action taken by Radformation to enforce its Intellectual Property Rights.
2.5. Delivery. Unless otherwise specified in the Order Form, Radformation shall deliver the Documentation and those Software components to be installed to Customer for installation by Customer on Licensed Servers.
3. Use of Software and Documentation
3.1. Verification Required Before Use. Customer acknowledges and agrees it is Customer's responsibility to verify or validate the Software for Customer's use, and that Customer is not relying on Radformation to do so. Customer covenants, as a material term of this Agreement, that before using the Software in connection with diagnosis, treatment planning, providing medical treatment of or to any patient, or any other clinical use, Customer will:
(i) run the Software's self-verification and validation process ("Self-Verification"), if any;
(ii) perform independent verification and validation, in accordance with the verification and validation processes standard within the radiation therapy field ("Independent Verification");
(iii) Disclose the results of Self-Verification to Radformation and confirm that Customer has performed Independent Verification; and
(iv) Determine to Customer's reasonable satisfaction that the Software performs accurately.
The above requirement for Self-Verification and Independent Verification must be performed once after installation of the Software and once after installation of each Update provided by Radformation that affects the capabilities and features of the Software that relate to the Authorized Use.
3.2. Customer's Responsibility for Use of Software. Customer is solely responsible and liable for all uses of the Software and Documentation by Customer or any Person obtaining access to the Software or Documentation through Customer. Without limiting the generality of the foregoing:
(a) Customer 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 and/or Documentation. Customer acknowledges and agrees that it is and shall be Customer's obligation to verify the accuracy and applicability for each patient, in each instance, of any treatment plan created by using the Software and/or Documentation, and in general to determine the suitability of the Software and Documentation for Customer's intended use.
(b) Customer shall notify Radformation in writing of any material defect Customer believes exists in the Software or Documentation, and promptly provide to Radformation all information known or reasonably available to Customer regarding the alleged defect.
(c) Customer shall be solely responsible for the supervision, management, and control of its use of the Software, including, but not limited to (a) assuring proper configuration of equipment or devices; (b) establishing adequate operating methods; and (c) implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Software.
(d) With respect to all computer programs and data and hardware not provided by Radformation and to be used or reproduced during Customer's use of the Software, Customer represents that it has all necessary rights to use or reproduce the computer programs and that no use of the Software in connection therewith shall be made that causes an infringement of the right of any Third Party.
3.3. Audit. Radformation may, in Radformation's sole discretion, audit Customer's use of the Software to ensure Customer's compliance with this Agreement, provided that any such audit shall be conducted with at least fifteen (15) days' prior notice, during regular business hours, not more than once annually, and shall not unreasonably interfere with Licensee's business activities.
4. Limited Warranty.
4.1. Warranty.s Subject to the limitations, exclusions, and conditions set forth in this Section 4, Radformation warrants to Customer that:
(a) for a period of one (1) year from the date of installation or first use of the Software, the Software will substantially conform in all material respects to the Product Specifications, when installed, operated, and/or used as recommended in the Documentation and in accordance with this Agreement; and
(b) For a period of sixty (60) days after Radformation supplies any Update or Patch to Customer, no such Update or Patch, when correctly installed or used by Customer in accordance with the Documentation and this Agreement, will have a material adverse effect on the functionality of the Software.
4.2. Limitations. The limited warranties set forth in Section 4.1 apply only if Customer: (a) notifies Radformation in writing of the problem before the expiration of the specified warranty period; (b) has promptly installed all Updates to the Software that Radformation previously made available to Customer; and (c) as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all License Fees then due and owing).
4.3. Exclusions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranties set forth in Section 4.1 do not apply to defects in the Software arising out of or relating to: (a) accident, theft, misuse, or neglect; (b) use of the Software, without prior written authorization from Radformation, in a manner not authorized by the Documentation; (c) any modifications to the Software not made or authorized in writing by Radformation; (d) computer viruses or other malicious code not introduced by Radformation or its Representatives; (e) defects, problems, or failures created by Third Party products, or the operating system or environment provided by Customer; (f) failure to promptly install all Patches and Updates that Radformation has made available to Customer; (g) any combination, operation or use of the Software with, any technology (including any software, hardware, firmware, system, or network) or service not specified for Customer's use in the Documentation; or (h) any beta software, software that Radformation makes available for testing or demonstration purposes, temporary software modules, or software licensed by Radformation without a license fee.
4.4. Remedy. If Radformation breaches, or is alleged to have breached, any of the warranties set forth in this Section 4, Customer's remedy shall be to have Radformation, at its sole expense, repair, replace or modify the Software until it conforms with the warranty.
4.5. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 4, RADFORMATION HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AVAILABILITY, UNINTERRUPTED USE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
5. Software Support; Updates
5.1. Software Support.
(a) During the Term, Radformation will provide Basic Support as set forth in Exhibit A at no additional charge to Customer. In the event Customer requires support or maintenance services beyond Basic Support, Customer may request Special Support, the terms of which, including any applicable fees, will be agreed to in writing between the Parties.
(b) After the Initial Term, Radformation may modify the terms of Basic Support or the applicable fees, provided that (i) Radformation notifies Customer of the modification at least sixty (60) days in advance by submitting a new Exhibit A, (ii) the modified Basic Support includes at a minimum telephone and remote support during Standard Hours (as defined in Exhibit A), and (iii) any modifications to Basic Support or the applicable fees do not take effect until the next Renewal Term.
5.2. Updates. From time to time, Radformation may make available to Customer Updates and/or new Releases of the Software. If the original Software was provided on an installed basis, Customer covenants that Customer shall promptly install all such Updates and new Releases promptly upon receiving notice of and access to such Updates and new Releases.
6. Fees and Payment
6.1. License Fees. As compensation for the License, Customer shall pay Radformation the License Fees specified in the Order Form for the Initial Term. At least sixty (60) days before the end of the Initial Term or the then-current Renewal Term, Radformation shall provide written notice to Customer of any change in the License Fees or other fees applicable to the subsequent Renewal Term. If no such notice is provided, then the License Fees for the Initial Term shall continue to apply for the next Renewal Term.
6.2. Special Support; Expenses. If Customer requests Special Support, Customer shall be responsible for payment of the applicable hourly rates for the Special Support agreed to by Customer and Radformation. In the event such Special Support is to be provided at Customer's premises, Customer shall be responsible for all reasonable and necessary travel, food, lodging, and related out of pocket expenses incurred by Radformation personnel providing the Special Support.
6.3. Payment. All License Fees for the Initial Term shall be due and payable as specified in the Order Form. All fees for a Renewal Term and all other undisputed fees or amounts due Radformation under this Agreement shall be due and payable in full within thirty (30) days of the date of Radformation's invoice. In the event Customer disputes any amount in an invoice, it must provide Radformation written notice of such dispute prior to the date the payment is due. Except for any disputed amount, Customer shall have no right of offset or withholding under this Agreement. Except as expressly set forth in this Agreement, all payments are non-refundable and shall be payable in U.S. dollars.
6.4. Interest on Late Payments. All fees and amounts due to Radformation that are not paid within thirty (30) days after the date such amounts are due and payable shall bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate of interest allowable by law.
6.5. Taxes and Other Charges. All License Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Radformation's income. Customer shall pay all charges or taxes as stated in Radformation's invoice or provide Radformation with an appropriate certificate of exemption within thirty (30) days of the date of any invoice. If Customer elects to challenge the applicability of any tax or charge, Customer shall pay the tax or charge to Radformation or give Radformation evidence of payment to the taxing authorities or charging entity, and Customer may thereafter challenge such tax or charge and seek a refund.
7. Collection and Use of Information.
7.1. Information Collected. Customer acknowledges that Radformation may collect and store technical information about use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. Such information does not include any personally identifiable information or protected health information and may include, without limitation: (a) the "name" and IP address of the Client(s); (b) license key data; and (c) log crash data about the Client operating state at the time of an application crash ("Technical Data").
7.2. Use of Information. Customer agrees that Radformation may use such Technical Data to: (a) improve the performance of the Software or developing Updates or new Releases; (b) verify that no more than the Maximum Number of Concurrent Users are using the Software; (c) verify Customer's compliance with the terms of this Agreement and enforce Radformation's rights, including all Intellectual Property Rights in and to the Software.
7.3. Protected Health Information. Radformation does not require access to any personally identifiable information about Customer'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 Customer shall ensure that no such information is disclosed to or accessible to Radformation.
7.4. Image Data. If Customer enters into an Order Form for the use of Radformation's AutoContour Software, Customer acknowledges and agrees that in the use of the Software, certain CT images selected by Customer ("Image Data") will be transmitted to Radformation for analysis and processing. Prior to transmission, the Software anonymizes the Image Data so that no personally identifiable information, Protected Health Information, or Individually Identifiable Health Information is transmitted to Radformation. Radformation's Software then analyzes and processes the Image Data before delivering the results back to Customer. Immediately upon delivery of the results to Customer, the Image Data is fully deleted and removed from Radformation's systems. All Image Data is fully encrypted in transit. Except as expressly set forth in this paragraph, Radformation will make no use of Image Data provided by Customer without Customer's prior written consent.
8. Limitation of Liability
8.1. EXCEPT AS MAY ARISE (I) FROM A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS IN SECTION 10; OR (II) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9: (A) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT RECEIVED BY RADFORMATION FROM CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM; AND (B) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY. THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY EVEN IF A PARTY'S REMEDIES UNDER THIS AGREEMENT FAIL IN THEIR ESSENTIAL PURPOSE.
8.2. No Liability for Certain Losses. Except as expressly provided in this Agreement or an Order Form, in no event will Radformation or its affiliates, or any of its or their respective licensors or service providers, be liable to Customer or its Representatives for any: (a) use, interruption, delay, or inability to use the Software; (b) loss or corruption of data caused by Customer or its information technology systems; (c) losses caused by Customer's systems, hardware or any software not provided by Radformation; or (d) Customer's failure to install any Patches, Updates or Releases.
9.1. By Customer. Customer shall at its sole expense protect, defend, and hold harmless Radformation and its affiliates, directors, officers, employees, agents, licensors, successors and assigns from and against any damages, judgments, awards, fines, penalties, expenses, and costs (including without limitation reasonable attorney's fees and expenses) (collectively "Damages") from a demand, action, suit or proceeding brought by a Third Party (a "Claim"), arising from or related to (i) any alleged or actual breach by Customer or its Representatives of any of its obligations, representations or warranties under this Agreement; (ii) any clinical or medical decisions made by Customer or its Representatives, including without limitation the evaluation and treatment of patients; or (iii) Customer's violation of applicable law.
9.2. By Radformation. Radformation shall at its sole expense protect, defend, and hold harmless Customer and its affiliates, directors, officers, employees, agents, licensors, successors and assigns from and against any Damages from a Claim, arising from or related to (i) any alleged or actual breach by Radformation of any of its obligations, representations or warranties under this Agreement; (ii) any assertion that the use of the Software or Documentation, or any portion thereof, in accordance with the Documentation and with this Agreement infringes any Third Party United States Intellectual Property Rights; or (iii) Radformation's violation of applicable law.
9.3. Right to Separate Counsel. An indemnified party shall have the right, but not the obligation, to arrange at its own expense for separate counsel of its own selection to participate in the Claim, provided that such participation does not limit the indemnifying party's control of the defense. The indemnifying party will not settle a Claim in a manner that imposes any obligation on an indemnified party without the indemnified party's prior written consent, which consent will not be unreasonably withheld.
9.4. Exception. Notwithstanding the foregoing, neither Party will have an obligation to indemnify the other Party to the extent a Claim results from: (i) acts or omissions that would obligate the indemnified party to also indemnify the other Party; or (ii) the other Party's gross negligence or willful misconduct.
9.5. Infringement. Claims. If a Claim is made that the use of the Software or Documentation, or any portion thereof, in accordance with this Agreement, infringes any United States Intellectual Property Rights, Radformation, at its sole expense and option, shall either: (a) procure for Customer the right to exercise the rights and licenses granted hereunder with respect to the Software and Documentation; (b) modify the Software or Documentation to make it non infringing but continue to meet the Product Specifications; (c) replace the Software and Documentation with equivalent but non infringing software of like functionality that meets the Product Specifications and appropriate documentation; or (d) if options (a)-(c) are not commercially reasonable, terminate this Agreement and refund the License Fee for any unused portion of the Term.
9.6. Limitations. Radformation shall have no liability under this Section 9 for any infringement Claim to the extent caused by: (a) use of the Software or Documentation that is not permitted under Section 2; (b) use of a Release of the Software other than the most recent Release offered to Customer by Radformation; use of the Software without installation of all applicable Patches and Updates offered to Customer by Radformation; (c) any modifications to the Software other than provided by Radformation or otherwise approved by Radformation; or (d) any combination of the Software with software not supplied by or authorized by Radformation if such claim would have been avoided but for such combination.
10.1. Scope. Each Party ("Recipient") may be exposed to certain Confidential Information of the other Party ("Discloser"). As used herein, the term "Confidential Information" refers to any and all nonpublic information or materials that, if disclosed in written form, is labeled "confidential" or, if disclosed orally, is identified as confidential prior to disclosure and submitted to the other party within thirty (30) days in a writing labeled "confidential," or information the receiving party should reasonably believe to be confidential based upon its content and the context of its disclosure. For the avoidance of doubt, Radformation's quotation, pricing information, code, Documentation, roadmaps, and technical specifications or data, and the terms of this Agreement are deemed to be Radformation's Confidential Information whether or not they are marked or otherwise identified as confidential. All Confidential Information, including copies made by Recipient, will remain the property of Discloser.
10.2. Exclusions. Confidential Information shall not include any information which: (a) becomes publicly known through no wrongful act or omission of Recipient; (b) was already known to Recipient prior to disclosure pursuant to this Agreement (as evidenced by contemporaneously maintained written records); (c) becomes known to Recipient, without confidential restriction from a Third Party; or (d) is independently developed by Recipient without use of Discloser's Confidential Information;
10.3. Nondisclosure. Recipient will hold Discloser's Confidential Information in confidence and will treat Discloser's Confidential Information with the same degree of care taken to protect its own similar confidential information, but in no event with less than reasonable care. Recipient further agrees to limit disclosure of such information to those of its directors, employees, contractors, and agents who have a need for such information and who are bound under a written agreement or legal obligation to keep such information confidential. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority, provided that Recipient, if permitted by applicable law, gives Discloser prompt notice of any such legal or governmental demand and reasonably cooperates with Discloser, at Discloser sole expense, in any effort to seek a protective order or otherwise to contest such required disclosure. The obligations of confidentiality imposed by this Agreement shall survive any termination of this Agreement.
11. Compliance with Law.
11.1. Generally. Each Party shall comply in all respects with all applicable law in connection with its performance under this Agreement, including without limitation any export control laws relating to the Software and Documentation.
11.2. Debarment. Radformation represents that neither it nor any of its employees or agents providing services under this Agreement (i) are or have been excluded, terminated, suspended, or debarred from an applicable federal or state health care program or from participation in any federal or state procurement or non-procurement programs, or (ii) have been convicted of a criminal offense as set forth in 42 U.S.C. § 1320a-7, including but not limited to an offense related to the provision of healthcare items or services. Radformation will promptly notify Customer of any change in the status of the representations set forth in this section. If the representations in this section cease to be true, Customer will have the right to terminate this Agreement immediately upon providing written notice to Radformation and receive a pro rata refund of License Fees.
11.3. Governmental Audit. To the extent required by applicable law, Radformation will, until four (4) years after the termination of this Agreement, make available, upon written request by the Secretary of the Department of Health and Human Services or upon request by the Comptroller General of the United States General Accounting Office, or any of their duly authorized representatives, a copy of this Agreement and such books, documents, and records as are necessary to certify the nature and extent of the costs of the products and services provided under this Agreement. Radformation further agrees that, if it carries out any of its duties under this Agreement through a subcontract with a related organization with a value or cost of Ten Thousand Dollars ($10,000.00) or more over a twelve (12)-month period, it will include in each such subcontract a provision requiring the related organization to the costs of its products and services.
12. Term and Termination
12.1. Term. Unless earlier terminated as provided herein, this Agreement shall commence on the Effective Date of the first applicable Order Form and continue for an initial term as specified in the Order Form (the "Initial Term"). Thereafter, the term of this Agreement will automatically be extended for additional successive one-year periods (each a "Renewal Term" and together with the Initial Term, the "Term"), unless either Party provides written notice, at least thirty (30) days prior to the end of the then current Term of its intent not to renew.
(a) Either Party may terminate an applicable Order Form (and this Agreement if all Order Forms are terminated) for material breach if the breach remains uncured thirty (30) days after written notice to the other Party specifying the nature of the breach.
(b) Either Party may terminate an applicable Order Form (and this Agreement if all Order Forms are terminated), effective immediately upon written notice to the other party, if the other Party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business
12.3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, all licenses and other rights granted hereunder shall also terminate, and Customer shall cease using and destroy all copies of the Software and Documentation. Unless this Agreement is terminated due to the uncured material breach of Radformation, the Customer will not be entitled to refunds due to the early termination of the Agreement.
12.4. Survival. Sections 2.4, 4, 6, 8, 9, 10 and 13, as well as any other right or obligation of the Parties that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement:
13.1. Relationship of the Parties. The Parties are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any Third Party
13.2. Assignment. Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, without the other Party's prior written consent; provided, however, either Party may, with written notice but without consent, assign all of its rights and obligations to an affiliate or in connection with a merger, acquisition, asset purchase or other business combination. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
13.3. Amendment; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.4. Force Majeure. Neither Party will be responsible or liable to the other Party, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for payment obligations) where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, disease, epidemic, hostilities, war, terrorist attack, embargo, government imposed travel restrictions, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, or any other circumstances or causes beyond the Party's reasonable control. In the event a Party's performance will be delayed or prevented under this provision, the Party shall provide prompt written notice to the other Party.
13.5. Integration. This Agreement, including any Exhibits and each applicable Order Form, constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings between them, whether written or oral, between them relating to the subject matter of this Agreement. This Agreement may not be supplemented, explained or interpreted by any evidence of trade usage or course of dealing.
13.6. No Third-Party Beneficiary. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.7. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
13.8. Notices. All notices, requests, consents, claims, demands, waivers, and other communications to either Party shall be in writing, shall be sent to the address for such Party specified in the Order Form or to such other address as such Party by specify by notice to the other Party, and shall be deemed to have been given:
(i) when delivered by hand (with written confirmation of receipt);
(ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
(iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or
(iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
13.9. Headings. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference only and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.
13.10. Form. Where the context so admits, words and expressions appearing in the singular in this Agreement may be interpreted in the plural, and vice versa.
13.11. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
13.12. Dispute Resolution. Any dispute arising from or relating to this Agreement shall be determined by binding arbitration before a single arbitrator carried out in accordance with the commercial dispute rules of the American Arbitration Association. Such arbitration shall be heard in New York, NY, and either Party may enter the final ruling of the arbitrator for judgment in a court of competent jurisdiction. The fees of the Association and the arbitrator shall be divided equally between the Parties, and each Party otherwise shall pay its own legal fees and related expenses. The arbitrator shall have the authority to order any remedies, legal or equitable, which a Party could obtain from a court of competent jurisdiction based on the claims asserted (except attorneys' fees and costs), and nothing more; provided, however, there shall be no authority for a dispute to be arbitrated on a class action basis, nor shall consolidation or joinder with the claims of another person be permitted. The arbitrator shall prepare a written decision setting forth his or her findings of fact and law. Subject to the FAA and other applicable law, the arbitrator's award shall be final and binding, without right of appeal. Either Party may seek to have judgment entered upon the award by a court of competent jurisdiction.
13.13. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute but one instrument.
13.14. Authority to Contract. Each Party represents that it has the full power and authority to enter into this Agreement and to convey the rights herein conveyed.
Radformation shall provide Customer with Patches for the Software at no additional cost.
Radformation shall offer Updates to the Software to Customer at the prices and upon the terms set forth in the applicable Order Form.
3. Telephone and Email Support
Radformation shall provide telephone and email support for the Software during Standard Hours (defined below) at no additional cost.
4. Remote Diagnostic Support
When available and elected by Customer, Radformation may provide diagnostic and virtual desktop support for the Software remotely during Standard Hours through WebEx or other remote access program, at no additional cost.
5. Priority Levels and Response Times
"Priority Level 1" means an issue which prevents the performance of any mission critical program functions, and which cannot be circumvented or avoided on a temporary basis by Customer.
"Priority Level 2" means an issue which significantly impairs the performance of any mission critical program functions, and which cannot be circumvented or avoided on a temporary basis by Customer.
"Priority Level 3" means an issue which does not prevent or significantly impair the performance of any mission critical program functions, or where such prevention of impairment can be circumvented or avoided on a temporary basis by Customer.
Radformation shall respond to Priority Level 1 and 2 issues within ninety (90) minutes and Priority Level 3 issues by the next business day. Radformation shall continue working Priority Level 1 and 2 issues until a solution or acceptable workaround is provided. If the Software will be down for an extended time, Radformation's customer support manager shall notify Radformation's senior service, including, when required, product and design engineers. If necessary, Radformation will continue to escalate the issue further within its support organization.
Workarounds do not constitute a resolution of an issue but may result in the issue being reassigned to Priority Level 3. The permanent resolution of Priority Level 3 issues may appear in future product releases.
Radformation's resolution efforts may be suspended by agreement of Customer, or if during such period Customer assistance is required to continue effective work and is not available, or if resolution is beyond Radformation's control. Radformation will notify Customer promptly if it is unable to resolve any issue.
6.1. Included Training
a. Radformation shall provide educational materials about Radformation's Software on Radformation's website for Customer to use.
b. Radformation shall provide educational videos about Radformation's Software on Radformation's website and YouTube for Customer to use.
c. Radformation shall provide two (2) hours of educational remote training session at no additional cost when purchasing new access to the Software.
6.2. Purchased Training
a. If Customer requires additional training, Radformation and Customer will negotiate the terms of such training, including without limitation, whether such training will be provided remotely or on Customer's premises and the hourly rates and expenses applicable to the additional training. The obligation to provide such additional training shall only apply upon the written agreement of both Parties.
7. Customer Responsibilities
Unless expressly stated in an Order Form, Customer is responsible for purchasing any additional hardware, network capacity, or other system components required to operate the Software and any Updates.
Radformation has no obligation to provide Basic Support or Updates:
(a) for any but the most current Release of the Software;
(b) for any copy of Software for which all previously issued Updates have not been installed; or
(c) for any Software that has been modified other than by or with the authorization of Radformation, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or Order Form.
9. Special Support
In the event Customer requires support, maintenance or special development services that are beyond the scope of Basic Support (as specified in this Exhibit A), Radformation and Customer will negotiate the terms of such Special Support, including without limitation, the specific services to be performed and that applicable hourly rates and expenses applicable to the additional training. The obligation to provide Special Support shall only apply upon the written agreement of both Parties
"Standard Hours" are from 10:00 a.m. to 6:00 p.m. Eastern Time Monday through Friday, except Radformation Holidays.
New Year's Day
Day after Thanksgiving
Christmas Eve Day
New Year's Eve Day