This software license agreement ("Agreement") governs access and use of our Software, as that term is defined below. This Agreement is entered into by and between Metrics Medicus, Inc. (“MMI”), and you, the person or entity accessing and using our Software (“Licensee”), by virtue of the actions set forth below (“Effective Date”).

By clicking on the “I AGREE” button below, Licensee affirmatively agrees to be bound by all terms and conditions contained in this Agreement. 

Separately, downloading or using any portion of the Software shall constitute Licensee’s agreement to accept and abide by all of the following rights and obligations associated with its access and use of the Software. If Licensee does not wish to be bound by such rights and obligations, Licensee may not use and must immediately return the Software or any part of it to MMI.

1. Defined Terms

            In this Licence:

            “Affiliates” shall mean and include any entity that directly or indirectly controls, is controlled by, or is under common control with Licensee, where “control” means the (i) ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares or interests of such entity or (ii) ability to direct the management or affairs of an entity, whether by contract or otherwise.

             “Assessment Tools” shall mean certified instruments and custom created instruments.

            “Assessor” shall mean a person, including but not limited to faculty, educators and instructors, who assess performance of healthcare providers.

            “Change of Control” shall mean, with respect to a party, (i) sale of all, or substantially all, of the party’s assets to another party, or (ii) the transfer of equity ownership of the party or the merger of the party with another party (or similar transaction), such that a person or persons which could not elect a majority of the directors of that party before such transfer, could elect a majority afterwards, other than a transfer which occurs in connection with an initial public offering of the shares of such party.

            "Intellectual Property Rights" means rights in copyright, database rights, domain names, trade marks and service marks and all goodwill associated therewith and symbolized thereby, patents, inventions, discoveries, concepts, improvements, know-how, trade secrets and design rights, in each case whether registered or unregistered and including all applications and rights to apply for registration, and all similar or equivalent rights.

            “Software” means the CareAssess ™ computer program(s) and Assessment Tools, in source and object code, in whatever forms supplied herewith by MMI, including any documentation and instructions for its or their use.

            “Trainee” shall mean a person whose performance is being assessed.

            “Working Group” shall mean a certain number of Assessors and Trainees that are designated by the Licensee in writing, and which may be modified from time to time on written notice by Licensee to MMI.

2. Grant of Licence

2.1 MMI hereby grants to the Licensee a restricted, non-exclusive, non-transferable, non-sublicensable (subject to use by Licensee’s Working Group as set forth herein), revocable, worldwide licence, and for the fees set out in Section 2.7 below, to use the Software solely during the term of this Agreement subject to the terms and conditions set out in this Licence. This license is contingent on Licensee, Assessors and Trainees abiding by each and every one of the terms and conditions contained in this Agreement and any other Agreement between Licensee and MMI.

2.2 The Licensee shall use the Software, solely for Licensee’s internal business purposes, and solely for use by Licensee’s Working Group in connection with performance assessment in healthcare contexts as set forth herein, during the term of the Agreement.

2.2.1 Assessors that are a part of Licensee’s Working Group shall be entitled to use the Assessment Tools, solely for the Assessors own personal use, and solely for purposes of assessing the performance of healthcare providers that are a part of Licensees’ Working Group, while such Assessor is employed by or otherwise contractually affiliated with the Licensee, during the term of the Agreement. 

2.2.2 Trainees that a part of Licensee’s Working Group shall be entitled to access and view their own performance assessment generated by an Assessor using the Assessment Tools, and solely for the Trainees own personal use, while such Trainee is employed by or otherwise contractually affiliated with the Licensee, during the term of the Agreement. 

2.3 The Licence shall continue until terminated in accordance with its terms.

2.5 Except as expressly provided herein, Licensee, Assessors and Trainees shall not, nor permit, facilitate or encourage others to, disclose, sell, copy, display, assign, transfer, sublicense, lease, furnish, lend, republish, transmit, distribute, alter, modify, adapt, translate, disassemble, decompile, prepare derivative works or reverse engineer, in any way, all, or any portion of, the Software or any performance data generated through use of the Software, without the express written consent of MMI.   

2.6 Licensee, Assessors and Trainees shall not interfere with or remove any copyright, trademark, patent or other proprietary notice affixed to the Software or any related materials, and the Licensee shall reproduce all such notices on any copies of the Software.

2.7 Licensee shall pay to MMI the license fees that are separately specified by MMI for purposes of the initial term of this Agreement, renewals, Trainees, Assessors and Assessment Tools, and which are made a part hereof.

           

            2.7.1 Any additional fees shall be paid to MMI no later thirty (30) days after the close of each calendar quarter in which they are incurred; each such payment shall be accompanied by a statement setting forth the basis for its calculation.

            2.7.2 All pricing and payments are and shall be in U.S. dollars. 

2.7.3 During the Term of this Agreement, and for a period of one (1) year after its termination, MMI or its agent shall have the right, during normal business hours and upon reasonable notice to Licensee, to audit on a confidential basis the relevant books and records of Licensee to determine if license fees have been accurately determined. The costs of such audit shall be borne by MMI unless it is determined that MMI has been underpaid by the greater of five percent (5%) or $2,500.00; in such case, costs of the audit shall be paid by Licensee.

3. Warranties and Representations

3.1 The Software is provided “as is” and MMI provides no warranties of any kind in relation to it, either statutory, express or implied, whether by statue, common law, usage, course of dealing, or otherwise. MMI does not warrant the accuracy, adequacy, completeness, continuation or non-interruption of the Software, and expressly disclaims liability for errors or omissions in the same. All conditions, warranties and representations implied by statute, common law, usage, course of dealing or otherwise as to any matters, including non-infringement of third party rights, title, availability, satisfactory quality, merchantability, freedom from defects or fitness for purpose in relation to the Software or any part of it are hereby excluded to the fullest extent permitted by law in any jurisdiction.

4. Upgrades, Fixes, Maintenance and Support

4.1 MMI does not undertake to provide any updates, upgrades, fixes or other amendments to the Software or any maintenance or support services in relation to it, and any such activity, if provided at all, shall be at the sole discretion of MMI. 

5. Rights in the Software

5.1 The Software, together with all documentation, technical ideas, concepts, know-how, inventions, discoveries, improvements (irrespective of who contributes to the improvements), and techniques related thereto, and all Intellectual Property Rights associated therewith, are and shall remain the exclusive property of MMI and no rights in the same shall be acquired by any Licensee, Assessor or Trainee except as specifically provided in this Licence.

5.2 The Licensee is permitted to utilise the Software in the form supplied by MMI, solely in accordance with and to the extent permitted herein. For the avoidance of doubt, the Software may not be used or applied in any form for the purposes of processing or performing calculations in respect of any business activity not directly connected to MMI.

5.3 The Licensee shall notify MMI immediately if it becomes aware of any unauthorised use of the whole or any part of the Software by any person or of any other breach of any term of this Licence and shall provide MMI with all information in its possession regarding the same.

6. Limitations on Liability

6.1 MMI and its directors, officers, employees, agents, consultants, contractors or affiliates shall have no liability for any direct or indirect or consequential loss or damage, cost or expense, or punitive damages, howsoever caused including loss of profits or anticipated profits, goodwill, reputation, income or contracts, business opportunity, or other loss, damage, cost or expense resulting from any third party claim, arising directly or indirectly from or in connection with the Software or the use (in accordance with this Licence or otherwise) of the Software or any part of it by the Licensee, Licensee’s Working Group or any third party, including any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, and any such liability is hereby excluded to the fullest extent permissible under any applicable law.

6.2 Notwithstanding anything herein to the contrary, any liability of MMI to the Licensee or any third party for direct damages from any claim whatsoever relating to this Agreement, the Software, use of the Software or any part of it and services or information provided hereunder or otherwise and regardless of the form(s) of action, whether in contract, tort, including negligence or strict liability, or otherwise, shall be limited to the aggregate amount paid to MMI by the Licensee under this License Agreement within the 12 month period preceding any such claim. Licensee agrees that an action for direct damages not to exceed such amount shall be its sole and exclusive remedy in exhaustion of all other remedies, at law or equity, relating to this Agreement, the Software provided hereunder or otherwise and that such remedy shall not be deemed or alleged by the Licensee to fail of its essential purpose.

7. Licensee’s Further Obligations

7.1 The Licensee hereby agrees and undertakes:

7.1.1 that the Software shall only be used in accordance with the terms of this Licence and with the instructions for its use embedded in or otherwise provided in relation to the Software;

7.1.2 that Licensee shall be solely responsible for and ensure full compliance with all terms and conditions of this Agreement by Licensee’s Working Group, including but not limited to all Assessors and Trainees, and that Licensee shall remain fully liable for the acts and omissions of Licensee’s Working Group, including but not limited to all Assessors and Trainees, for the Term; and

7.1.3 that it shall immediately notify MMI of any defect, error or failure in performance in relation to the Software, or of any allegations of infringement or other issues raised by any third party in relation to it, and in each case shall provide to MMI all information concerning the same of which it is aware. The Licensee shall provide MMI with all reasonable assistance in dealing with any such allegation or other issue, at MMI’s request and expense.

7.2 Confidentiality.

 7.2.1 Licensee hereby acknowledges that the Software and any information or materials related thereto, and all performance data generated as a result of use of the Software, are to be considered confidential information, and for the specific purposes described in this Agreement. Licensee further acknowledges that the Software, including any and all information or materials relating thereto, have been maintained by MMI as confidential and proprietary information, and Licensee hereby expressly represents and agrees that it is acquiring the limited right to use the Software for its own internal business operations, and will not disclose, lend, publish, transmit, assign, sublicense, transfer, sell, duplicate, lease, distribute or convey the Software or any confidential information about the Software or any performance data, in whole or in part, to any third party.

             7.2.2 Licensee further agrees that it will use commercially reasonable efforts, and at least the same degree of care in protecting the confidentiality of the confidential information as it uses in protecting its own information of a similar type and to avoid disclosure except: (i) as expressly provided herein or as agreed in writing by MMI; (ii) as required by law, regulation or court order or (iii) as requested or required by a regulatory or self-regulatory agency or supervisory authority having jurisdiction with respect to the activities of Licensee. 7.2.3 Licensee acknowledges and agrees that the obligations of confidentiality imposed by the terms and conditions of this Agreement on Licensee shall survive termination or cancellation of this Agreement regardless of the reason for such termination or cancellation.

 8. Assignment, Sublicensing, etc.

8.1 The Licensee shall not be entitled to assign, sublicense or otherwise transfer the Licence in whole or in part, or assign, sub-contract or otherwise transfer any rights under this Licence without the prior written consent of MMI. MMI is entitled to assign, sublicense or otherwise transfer this Agreement in whole or in part, or assign, sub-contract or otherwise transfer any rights under this Agreement in its sole discretion.

9. Term and Termination of the Licence

9.1 This Agreement and the License granted herein is effective as of the Effective Date and, unless terminated earlier in accordance with the terms hereof, shall continue for one (1) year from the Effective Date. Thereafter, the Agreement and the License granted herein shall renew for additional one (1) year periods until terminated by notice given by either party at least ninety (90) days prior to the end of any term (such initial term and any renewals, collectively the “Term”).

9.2 This Agreement and the License granted herein shall continue and shall immediately terminate at the end of the Term or otherwise upon termination of the Agreement or Licensee between the Licensee and MMI.

9.3 MMI may terminate this Agreement and the Licence granted herein, in its sole discretion, at any time on written notice.

9.4 Notwithstanding the foregoing, MMI may, in its sole discretion, terminate this Agreement and the License granted herein immediately and without notice upon the occurrence of any of the following:

 9.4.1 Licensee or any Assessor or Trainee fails to comply with any of the terms and conditions set forth in this Agreement; and

9.4.2 MMI determines, in its sole discretion, that Licensee's, or any Assessor’s or Trainee’s, use of the License or of the Software, or use of performance data, will compromise the integrity of the Software, the performance data or any of MMI’s or Licensee’s rights herein.

 9.5 In the event of termination of this Agreement or of the License granted hereunder for any reason, Licensee and all Assessors and Trainees will thereafter have no rights whatsoever with respect to the Software and all related materials, and Licensee and all Assessors and Trainees shall:

            9.5.1 immediately cease use of the Software;

            9.5.2 permanently remove all copies of the Software and all related materials that have been supplied to it by MMI from any and all computer equipment upon which such Software and all related materials are installed;

            9.5.3 at MMI’s sole discretion, immediately return to MMI or destroy all copies of the Software, and all tangible embodiments thereof, in whatever form or medium, together with all related materials, then in its possession or under its control, without keeping any copy or transcript thereof; and

            9.5.4 certify to MMI in writing that it has fully complied with the above three requirements.

 10. Revisions / Access to Software 10.1 MMI may, in its sole discretion and without prior notice, add to, modify or delete any of the terms and conditions related to this Agreement. Such revised terms are effective immediately and are incorporated into this Agreement when posted by MMI.

                       10.2 If Licensee chooses not to accept any such revision, it must indicate such non-acceptance by promptly notifying MMI of its desire to terminate the License and complying with the procedures required of Licensee in the event of termination as set forth in Section 9 of this Agreement. Upon Licensee's performance of the aforesaid procedures, this Agreement and the License granted hereby shall terminate.

             10.3 Licensee's failure to perform such termination procedures, and/or its continued use of the Software, shall constitute Licensee's consent to be bound by the terms and conditions of the Agreement as revised.

             10.4 MMI has the right, at any time, to modify or discontinue, temporarily or permanently, access to the Software, and/or to refuse or restrict anyone from accessing the Software, with or without notice and in its sole discretion. MMI shall not be liable for any modification, suspension or discontinuance of any such access to the Software.

 11. Compliance / Restrictions 11.1 Licensee and all Assessors and Trainees expressly agree to comply with all applicable laws, rules and regulations with respect to the License and this Agreement, including but not limited to FERPA and HIPPAA.

 11.2 Licensee agrees to maintain a copyright notice on the Software and any software that includes the Software indicating the ownership of a copyright to the Software. Such copyright label shall conform substantially to the following copyright label:

                        “© 2014-2017 Metrics Medicus, Inc.” 

12. Equitable Relief Licensee agrees that any breach of the License or this Agreement by it, or by any Assessor or Trainee, or by any of its or their Affiliates, officers, directors, employees, and/or agents, will result in irreparable harm to MMI which is not compensable by money damages alone, and for which MMI will not have any adequate remedy at law. Licensee agrees that injunctive or equitable relief may be obtained against it, any Assessor or Trainee, and its and their Affiliates, officers, directors, employees, and/or agents without the posting of any bond or security by MMI in addition to and without prejudice to any other remedy to which MMI may be entitled to prevent or curtail any such breach, whether threatened or actual.

 13. Indemnification Licensee shall indemnify and hold harmless MMI, its Affiliates, licensors, service providers, suppliers, and any of their respective directors, officers, employees, agents and professional advisors against any losses, judgments, liabilities, costs or expenses (including, without limitation, attorneys' fees and expenses and any other costs and expenses incurred in connection with the defense of any claim, action, suit or proceeding), and amounts paid in settlement actually and reasonably incurred by MMI (collectively, "Loss"), arising from or relating to: (i) this Agreement; (ii) breach of this Agreement; (iii) reliance on the Software or any product incorporating the Software or derived therefrom; (iv) any action or failure by Licensee, any Assessors, any Trainees, any agent or third party acting on behalf of or with permission of Licensee to fully observe the terms and conditions of this Agreement; and (v) any threat, action, audit, claim, or demand asserted by any third party, based directly or indirectly on the use, manufacture, sale, offer to sell, or importation of the Software by Licensee, by any Assessor or Trainee, or by any of its or their Affiliates, customers, or any other party, including without limitation for any violation of any of such third party’s rights or rights of any other person or entity, including but not limited to misappropriation or infringement of any Intellectual Property rights. 

14. Entire Agreement Notwithstanding any other agreements, directly or indirectly between or involving the parties or any of their Affiliates, this Agreement, as it may be amended or modified from time to time, constitutes the entire understanding of the parties hereto and supersedes any and all prior or contemporaneous representations, proposals, or agreements, whether written or oral, between the parties with respect to its subject matter.

 15. Dispute Resolution/Governing Law Any action or litigation of any kind initiated by either party in connection with this Agreement shall be initiated and adjudicated in the appropriate courts located in Orlando Florida and each party hereby consents to the exclusive jurisdiction and venue of such courts and to service of process by any means authorized by the laws of the state of Florida and hereby waives the right to object to or transfer the venue of such litigation. This Agreement shall be governed by and construed in accordance with the laws of the state of Florida, without regard to conflict of law principles thereof.

 16. Data Protection Licensee agrees that MMI shall be entitled to possess any personal data provided to it by Licensee or any Assessors or Trainees for the purpose of exercising any rights or obligations that MMI has under this Agreement, including compliance with MMI’s legal and regulatory obligations. Licensee agrees that MMI shall have a right to use Licensee’s and all Assessors and Trainees personal data for the purposes of providing access and use of the Software (including training and support), hosting, administering and improving the Software, marketing of MMI products and/or services and to meet legal and regulatory requirements.

             In relation to all personal data provided by Licensee or by any Assessor or Trainee to MMI, Licensee shall:

(A) ensure that all personal data provided by Licensee or by any Assessor or Trainee is accurate, complete and up to date;

(B) grant MMI permission to use Licensee’s and all Assessor’s and Trainee’s personal data for the purposes set forth herein;

(C) ensure that any personal data Licensee has relating to a third party has been obtained with such third party’s knowledge and consent, and to the extent that Licensee supplies MMI with any third party personal data, such third party has consented to Licensee’s provision of their personal data;

(D) ensure that MMI’s use of personal data provided by Licensee or by any Assessor or Trainee, for the purposes described herein, will not result in any breach of data protection laws or any other laws or regulations, including but not limited to FERPA and HIPPAA;

(E) not use the personal data of any third parties obtained from MMI or use of the Software for any purposes not specifically permitted by this Agreement, or in a way that breaks any applicable laws or regulations, including but not limited to FERPA and HIPPAA; and(F) do and execute, or arrange to be done and executed, each act, document and thing necessary or desirable in order to comply with this Section 16.

 17. Severability If for any reason a court of competent jurisdiction finds any part of the Agreement violates any law or is otherwise invalid, unenforceable or legally defective, this Agreement shall be construed and interpreted by amending such part of the Agreement to be in compliance with such law or otherwise valid, enforceable or legally effective, if practicable, or otherwise interpreted without reference to such part.

 18. Modifications No revisions or modification of this Agreement shall be effective unless it refers to this Agreement and is in writing, signed by authorized representatives of the parties hereto.

 19. Survival Sections 1, 2.7.8, 3-6, 7.2, 9.5, 12-21 of this Agreement shall survive and continue to bind the parties after the cancellation, termination, or rescission of this Agreement.

 20. Conflict

In the event of a conflict between the provisions of this License Agreement and any other agreement between MMI and Licensee, the provisions of this License Agreement shall govern. The Section titles in this Agreement are for convenience only and shall not define or limit any of the provisions hereof.

21. Third Party Rights Except as otherwise provided herein, a person who is not a party to this License has no right or otherwise to enforce any term of this License.

 

 

Exhibit A.

    Fees

Licensee shall pay MMI licensee fees as follows

            Initial Term - five-thousand dollars ($5,000.00) initial licensing fee payable by Licensee on the Effective Date of this Agreement.

            Renewals - five-thousand dollars ($5,000.00) renewal licensing fee payable by Licensee on each one (1) year anniversary of the Effective Date of the Agreement for the Term.

            Trainees - fifty dollars ($50.00) per year for each Trainee that is designated as part of a Working Group, and payable by Licensee, or such Trainee at Licensee’s direction, (i) at the time such Trainee is first designated as part of a Working Group, and (ii) on each one (1) year anniversary thereafter for the Term.

            Assessors - one-hundred dollars ($100.00) per year for each Assessor that is designated as part of a Working Group, and payable by Licensee, or such Assessor at Licensee’s direction, (i) at the time such Assessor is first designated as part of a Working Group, and (ii) on each one (1) year anniversary thereafter for the Term.

            Assessment Tools:

1 Certified Instruments – one-hundred twenty-five dollars ($125) per year for each certified instrument, and payable (i) at the time such certified instrument is first downloaded by Licensee, and (ii) on each one (1) year anniversary thereafter for the Term.

2 Custom Created Instruments – one-hundred twenty-five dollars ($125) per year for each custom created instrument, and payable (i) at the time such custom created instrument is first downloaded by Licensee, and (ii) on each one (1) year anniversary thereafter for the Term.