Heidelberg Engineering Inc. Software License Addendum
This Software License Addendum (“License”) incorporates by reference the Heidelberg Engineering, Inc. Terms and Conditions of Sale (the “Terms and Conditions”) and supplements the Terms and Conditions with the following additional provisions. In the event of any conflict between this License and such Terms and Conditions, this License shall take precedence with respect to any Software or Third-Party Software or related services. Except as modified and supplemented herein, the Terms and Conditions will remain in full force and effect pursuant to their terms.
1. Definitions.
Terms not otherwise defined herein shall have the meanings set forth in the Terms and Conditions:
“Buyer Data” means any data provided or collected by Buyer that is accessed, processed or stored by the Software or Third-Party Software or associated product. “Documentation” means all material, including all printed material and on-line or electronic documentation (excluding training materials), referencing the Software and/or Third-Party Software provided hereunder.
“Quote” means the Quote issued by HEI for the Software, Third-Party Software or associated product.
“Software” means HEI’s proprietary computer software provided by HEI under this License, including any Updates thereto.
“Third-Party Software” means any proprietary computer software owned by a third party that HEI may provide to Buyer in connection with the Software or associated product.
“Update” means upgraded, modified or enhanced versions of the Software provided by HEI.
2. License Grant.
2.1 Subject to the terms of this License, HEI hereby grants to Buyer a non-exclusive, non-transferrable license to use Software and Documentation in connection with the associated product(s) sold by HEI.
2.2 Buyer has no right to (i) lease, rent, transfer, distribute, sublicense, timeshare, or allow third parties to access Software, Documentation, or Third-Party Software; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to reconstruct or discover the source code of the Software or Third-Party Software; (iii) pledge Software or Third-Party Software as collateral or otherwise, or encumber such Software or Third-Party Software with any lien or security interest; (iv) modify, alter or adapt the Software or Third-Party Software, or (v) remove any product identification, copyright, trademark, or other notice from Software, Documentation or Third-Party Software. Notwithstanding the foregoing, Buyer shall be permitted to allow its third party associates, faculty, staff, contractors or consultants (“Representatives”) to access and use the Software, Documentation and Third-Party Software on behalf of Buyer, provided that any such person shall use the Software, Documentation and Third-Party Software only for the benefit of Buyer and only in accordance with the terms of this License, and Buyer shall be responsible for the use by such Representatives.
2.3 Any Third-Party Software is provided to Buyer subject to the terms and conditions established by the third party supplier of such software. Such terms and conditions may be found or identified in Documentation, or the Order or Quote, or on the media delivered with Software, and which are incorporated by reference into this License. All Third-Party Software provided hereunder is bundled with HEI products and licensed for use with such products only.
2.4 Unless otherwise agreed by HEI or as specified in the applicable Quote or accepted purchase Order, Buyer shall only have the right to install and use a single copy of Software and Third-Party Software on a single computer workstation for use with HEI products.
2.5 Buyer may make one (1) copy of Software, Documentation, and Third-Party Software for backup purposes only, including by printing one-copy of on-line Software documentation for its own internal use. Buyer must reproduce and include all proprietary rights and copyright notices on any backup copies
3. Services
3.1 If installation services are included, HEI shall install, and implement the Software in accordance with the milestones (“Milestones”) and other terms agreed by the parties and set forth in the accepted purchase Order. HEI shall use commercially reasonable efforts to install and implement the Software pursuant to the Milestone schedule and in a manner that attempts to minimize disruption to the operations of the Buyer’s site.
3.2 This License does not obligate HEI to provide maintenance and support for any Software or Third-Party Software licensed hereunder. Support services are available under separate agreement (a “Support Agreement”), subject to payment of applicable annual maintenance fees. If HEI makes an Update available (either under any Support Agreement or generally to all customers without charge) that according to HEI’s records is relevant to Buyer, HEI will make reasonable efforts to notify Buyer of the existence of the Update and to make the Update available to Buyer (usually via download from HEI’s website). In general, HEI does not charge for such Updates, however, HEI reserves the right to charge for significant Updates, including those that provide substantial additional functionality or upgraded performance. Buyer may use any Updates provided or made available only in accordance with this License.
3.4 All services provided by HEI to Buyer related to the installation, implementation or support of the Software shall be performed in a professional and workmanlike manner by individuals of appropriate training and experience. In the performance of the services hereunder, all HEI personnel shall comply with all applicable Buyer policies and procedures provided in advance to HEI.
3.5 Buyer acknowledges that HEI does not generally have access to any Buyer Data stored in or processed by the Software or Third-Party Software. Any such access would arise solely in connection with installation or support services provided pursuant to this License or a Support Agreement. In the event that HEI shall have access to Buyer Data or other protected health information, HEI shall, upon request, execute and comply with a standard form of Business Associate Agreement (a “Business Associate Agreement”).
4. Fees & Verification.
4.1 Except as otherwise set forth in an accepted purchase Order, Buyer shall pay ten percent (10%) of the total amount related to the Software as indicated in the applicable Order (or associated Quote) upon acceptance of the Order by HEI. The remaining balance owed shall be paid in three (3) Milestone payments due upon the completion of each Milestone: (a) the Milestone 1 payment is due upon completion of all hardware installation and configuration of servers; (b) the Milestone 2 payment is due upon completion of cache management backend, Software installation, and data copy; and (c) the final Milestone 3 payment is due upon completion of Software data migration, training, third party device integration (if applicable) and go-live with the Software (“Go-Live”).
4.2 If an accepted purchase Order (or associated Quote) includes annual licensing fees for the Software, Buyer shall pay (a) the applicable licensing fee for the Initial Term (as defined in Section 5) upon Go-Live, and (b) the applicable licensing fee for each Renewal Term prior to the start of such Renewal Term.
4.3 During the term of this License and for 1 year thereafter, HEI may upon reasonable notice conduct an audit of the use of Software and Third-Party Software during normal business hours. Any such audit will be conducted so as to minimize any disruption of Buyer’s operations and any non-public information learned during such inspection shall be considered the Confidential Information of Buyer. Upon such notice, Buyer shall provide HEI site access and the right to inspect relevant portions of Buyer’s computer system on which Software and Third-Party Software resides.
5. Term and Termination.
5.1 For perpetual licenses (as indicated in an accepted purchase Order), this License is effective until terminated. If the Quote indicates a license is for a specified term, then such License shall remain in effect for the indicated term from the Effective Date (the “Initial Term”). Thereafter, the term of such License shall automatically renew for additional one year terms (each, a “Renewal Term”), unless either party gives written notice of termination at least 30 days prior to the end of the then current Initial Term or Renewal Term, as applicable. Unless otherwise specified in an applicable Quote, the License price for a Renewal Term shall be HEI’s then current price on the date of renewal.
5.2 HEI may terminate this License immediately if Buyer fails to comply with any of the terms and conditions herein and fails to cure such default within 30 days of receiving notice thereof from HEI. The license for any Software or Third-Party Software provided with leased products shall terminate concurrently with termination of the lease. Upon any termination, Buyer shall (a) cease using Software, Documentation, and Third-Party Software and (b) certify to HEI within one (1) month of the termination that Buyer has destroyed or returned to HEI Software, Documentation, and Third-Party Software, and all copies thereof.
6. Ownership.
6.1 All Software, Documentation, and Third-Party Software is licensed and not sold. Buyer agrees that HEI and its suppliers own all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Software, Documentation, and Third-Party Software, including any derivatives thereof.
6.2 HEI agrees that Buyer owns all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Buyer Data. The Software, Documentation and Third-Party Software shall not be deemed to include any Buyer Data.
7. Limited Warranties & Disclaimers.
7.1 HEI warrants to the Buyer that, for a twelve (12) month period starting on the date of Go-Live (the “Warranty Period”), the HEI Software covered by this Agreement will materially comply with its then-current Documentation. If, during the Warranty Period, an Error occurs (where “Error” is defined as a problem caused by failure of unmodified Software code to operate in conformance with the Documentation), HEI will use commercially reasonable efforts to correct such Error, provided Buyer furnishes HEI with the following: (a) written notice of the warranty claim, including a description of the failure to perform in accordance with Documentation and a specific description of the operating conditions (including the specific software/hardware configuration) under which the failure occurred, and (b) to the extent feasible, a representative sample of inputs for repeating and analyzing the failure. Any remedial steps taken by HEI hereunder shall not extend the applicable Warranty Period. If HEI is unable, after commercially reasonable efforts, to correct the Error, Buyer’s sole remedy shall be termination of the License and a refund of the license fees allocable to the Software that have been paid by Buyer to HEI hereunder.
7.2 The warranty in Section 7.1 does not cover Errors to the extent caused by the: (1) the failure of Buyer to provide and maintain a suitable installation environment for the Software; (2) the use of third party software, hardware or items not meeting HEI specifications in conjunction with the Software or Third-Party Software, or (3) neglect or misuse, acts of God, or alterations or modifications to the Software performed by others.
7.3 To the maximum extent possible, Buyer shall have the benefit of any applicable third party warranty or support with respect to Third-Party Software. In the event of problems with such Third-Party Software, HEI shall reasonably assist Buyer in obtaining the benefits of such warranties or support from the third party licensor thereof, but shall have no liability with respect to Third-Party Software or the support thereof.
7.4 This Section 7 provides the exclusive remedies for all claims of any kind based on failure of or defects in Software, Third-Party Software and Documentation, whether the failure or defect arises before, during, or after the applicable Warranty Period. The warranties provided in this Section 7 are exclusive and are in lieu of all other warranties, conditions, and guarantees whether written, oral, implied, or statutory for the Software, Third-Party Software and Documentation. HEI, AND HEI DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO ANY SOFTWARE, THIRD-PARTY SOFTWARE, DOCUMENTATION, OR RELATED SERVICES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR OTHERWISE, OR ANY WARRANTIES ARISING OUT OF COURSE OF CONDUCT OR OTHER TRADE CUSTOM OR USAGE. Nothing in this Section 7 shall limit or affect any support available under an applicable Support Agreement. The aggregate and cumulative liability of HEI with respect to the Software, services, or this License shall not exceed the amount of fees paid by Buyer under this License.
8. Confidential Information; Equitable Relief.
8.1 “Confidential Information” means any material, data or information disclosed by a party (the “Discloser”) to the other party (the “Recipient”), or to which the Recipient has access, that is not generally known by or disclosed to the public or to third parties, including (a) with respect to HEI, the Software (including code and training materials), Documentation, and Third-Party Software, and (b) with respect to Buyer, the Buyer Data and any other patient and medical record information and protected health information (as defined under HIPAA) maintained by Buyer.
8.2 Each Recipient agrees: (a) to exercise the same degree of care and protection with respect to a Discloser’s Confidential Information that it exercises with respect to its own Confidential Information, but in no event less than a reasonable degree of care; (b) not to use the Discloser’s Confidential Information except as permitted or contemplated hereunder; and (c) not to directly or indirectly disclose, distribute, republish or allow any third party to have access to any Confidential Information of the Discloser without the Discloser’s prior written consent. Notwithstanding the above, but subject to the further requirements of this Agreement, as applicable: (i) Buyer may disclose HEI Confidential Information to Buyer’s Representatives who have a need to know; (ii) HEI may, subject to any applicable Business Associate Agreement, disclose Buyer’s Confidential Information to its employees, authorized agents and subcontractors who have a need to know for use in accordance with this Agreement; and (iii) a Recipient may disclose Confidential Information if so required by law (including court order or subpoena) provided that the Recipient provides the Discloser with reasonable written notice of such disclosure if not prohibited by law.
8.3 Proprietary Information shall not include any information to the extent it: (a) is publicly or generally known, (b) was rightfully in the possession of Recipient prior to the date of receipt of such information from Discloser, or (c) is obtained from third parties without violating any confidentiality agreement. The confidentiality obligations set forth in this Section 8 shall survive termination of this License.
8.4 Each Recipient acknowledges that any misuse (including any use of Software, Documentation, or Third-Party Software in a manner inconsistent with this License) or disclosure of a Discloser’s Confidential Information, will cause immediate irreparable harm to the Discloser for which there is no adequate remedy at law. Each Recipient agrees that the Discloser shall be entitled to seek injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by the Recipient without posting of a bond or other security. The foregoing shall not limit HEI’s right to any remedies available at law, including the recovery of damages from Buyer for breach of this License.
