End User License Agreement
Effective Date: September 27, 2024
1. Scope and Applicability. This End User License Agreement (the “EULA”) governs Client’s (“Licensee”) use of all Licensor Technology supplied by the Securitas entity identified in the Ordering Document (the “Licensor”).
This EULA together with the Ordering Document, any applicable Product/Service-Specific Term, and any documents incorporated of referenced therein shall comprise the entire agreement between Licensee and Licensor relating to Licensee’s purchase of the licenses or rights to use the Licensor Technology (collectively, the “Agreement”). If Licensee has signed a formal written agreement between it and Licensor concerning the Licensor Technology, that written agreement shall govern Licensee’s license of the same instead of this EULA, except as set forth in such agreement.
Licensor expressly rejects any different terms or provisions contained in any Licensee document, and if the terms and conditions in this Agreement differ from the terms of Licensee’s offer, this Agreement will serve as the governing terms.
In the event of a conflict between the terms and conditions within this Agreement, the terms shall apply in the following order of precedence: (1) Ordering Document; (2) Product/Service-Specific Terms; (3) the STCs (if incorporated into or referenced in the Agreement); and (4) the EULA.
2. License and Right to Use. Subject to the terms of this EULA, Licensor grants Licensee the following rights and licenses, as applicable:
a. Embedded Software. In consideration for Licensee’s payment of the purchase price for the corresponding Hardware unit, Licensor hereby grants Licensee a limited, nonexclusive, nontransferable, non-sublicensable, perpetual license to use the Embedded Software on that particular Hardware unit onto which it is embedded for Licensee’s internal use and as described in the accompanying Documentation in connection with the use of the applicable Hardware.
b. Perpetual Software. In consideration for Licensee’s payment of the applicable License Fees, Licensor grants Licensee a limited, nonexclusive, nontransferable, non-sublicensable, perpetual license to use the Software for Licensee’s internal use in executable form and as described in the accompanying Documentation for the Usage Parameters.
c. Enterprise Software. In consideration for Licensee’s payment of the applicable License Fees, Licensor hereby grants Licensee a limited, nonexclusive, nontransferable, non-sublicensable, perpetual license to use the Enterprise Software for the Usage Parameters at the Permitted Facilities identified in the Agreement for internal use and as described in the accompanying Documentation.
d. Subscription Software. In consideration for Licensee’s payment of the applicable Subscription Fee, Licensor hereby grants Licensee a limited, nonexclusive, non-transferable, non-sublicensable license to use the Subscription Software for Licensee’s internal use and as described in the accompanying Documentation for the Usage Parameters during the Subscription Term.
e. Cloud Services. In consideration for Licensee’s payment of the applicable Subscription Fee, Licensor hereby grants Licensee a limited, nonexclusive, non-transferable, non-sublicensable right to use the Cloud Services for Licensee’s internal use and as described in the accompanying Documentation for the Usage Parameters during the Subscription Term.
f. Product/Service-Specific Terms. The following Licensor Technology have specific terms which are incorporated by reference and made a part of the Agreement if the Licensee purchases a license to the applicable Licensor Technology (the “Product/Service-Specific Terms”). The Product/Service-Specific Terms are available at www.securitashealthcare.com/product-specific-terms. The Product/Service-Specific Terms referenced below shall not apply if Licensee has not licensed the applicable Licensor Technology.
· AeroScout® Links Cloud Temperature Monitoring
· Arial® Emergency and Nurse Call System
· SpaceTrax® Inventory Management Platform
· MobileView® Software Platform and other RTLS Products
· WanderGuard® Blue Wander Management System
3. Backup Copies. Except for Embedded Software and Cloud Services, Licensee may make up to three (3) copies of the Licensor Technology for testing, backup or archive purposes in support of its use of the Licensor Technology as permitted hereunder. Licensee may make a reasonable number of copies of Documentation to support its use of the Licensor Technology. Licensee may not copy Embedded Software or Cloud Services. Each copy of the Licensor Technology and Documentation must contain Licensor’s and its licensors’ proprietary rights and copyright notices in the same form as on the original.
4. Conditions of Use. Unless expressly agreed by Licensor in writing, Licensee shall not:
a. Licensor Technology Generally.
i. remove, alter, or deface any of the trademarks, trade names, logos, patent or copyright notices or markings, or other legends, or add any other notices, markings, or legends to the Licensor Technology or Documentation;
ii. copy (except as permitted in Section 3 above), modify, create derivative works of, sell, assign, lease, rent, distribute or sublicense the Licensor Technology or Documentation or use the Licensor Technology or Documentation in a time-sharing arrangement or in any other unauthorized manner nor permit any other party to do any of the foregoing;
iii. use the Licensor Technology except in accordance with the Documentation; or
iv. derive or attempt to derive the source code of the Licensor Technology by any means, reverse engineer, decompile, disassemble, or translate the Licensor Technology or any part hereof, nor permit any other party to derive or attempt to derive such source code. However, if you are a European Union (“EU”) resident, information necessary to achieve interoperability of the Licensor Technology with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available to you from Licensor upon written request.
b. Cloud Services.
i. interfere with other customers’ access to, or use of the, Cloud Services, or with its security;
ii. facilitate the attack or disruption of the Cloud Service, including a denial-of-service attack, unauthorized access, penetration testing, crawling or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware, adware and cancelbots);
iii. cause an unusual spike or increase in Licensee’s use of the Cloud Service that negatively affects operation of the Cloud Service; or
iv. submit any information that is not contemplated in the applicable Documentation.
5. Licensee’s Product-Related Obligations. Licensee is responsible to provide, among other items as may be specified in the Agreement, statement of work, or Documentation:
a. Permanent and dedicated electrical power for the proper operation of the Hardware and Licensor Technology through Licensee’s own electrical power system;
b. Uninterrupted access to the site during normal business hours or whenever Licensor may reasonably require it for installation, maintenance, repair, training, or other similar services contemplated under the Agreement;
c. All necessary licenses, permits, or other authorizations required by state or Federal administrative agencies for the installation, use and operation of Products on the Licensee’s premises;
d. Proper mounting foundations for the Hardware;
e. Satisfactory environmental conditions for the Hardware and Licensor Technology (e.g. temperature and humidity control) as may be specified by Licensor; and
f. Labor and equipment necessary to establish and maintain connection of the Hardware and Licensor Technology to Licensee’s telephone, computer, Internet or WIFI networks, as may be applicable.
6. Licensee’s Control and Responsibility. Licensee has and will retain sole responsibility for: (a) all Licensee data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Licensee or any user in connection with the Agreement; (c) Licensee’s information technology infrastructure, including hardware, software and networks, whether operated directly by Licensee or through the use of third-party services; and (d) the security and use of Licensee’s and its users’ access credentials (if applicable). Licensee will keep all account information up to date, use reasonable means to protect its account information, passwords and other login credentials, and promptly notify Licensor of any known or suspected unauthorized use of or access to Licensee’s account.
7. Evolving Technology.
a. Changes to Licensor Technology. Licensor may: (1) enhance or refine the Licensor Technology, although in doing so, Licensor will not materially reduce the core functionality of that Licensor Technology, except as contemplated in Section 7.b. below; and (2) perform scheduled maintenance of the infrastructure and software used to provide Licensor Technology, during which Licensee may experience some disruption to that Licensor Technology. Whenever reasonably practicable, Licensor will provide Licensee with advance notice of such maintenance. Licensee acknowledges that occasionally, Licensor may need to perform emergency maintenance without providing Licensee advance notice, during which Licensor may temporarily suspend Licensee’s access to, and use of, the Licensor Technology.
b. End of life. Licensor may end the life of the Licensor Technology, including component functionality, by providing written notice on www.securitashealthcare.com; provided if Client has an active and paid agreement for Support Services Covering the Licensor Technology licensed by Client, Seller shall provide notice as required by the applicable terms and conditions governing such Support Services.
8. Open Source Software. Certain items of independent code that are included with the Licensor Technology hereunder are subject to various open source or free software licenses (the “Open Source Software”). The Open Source Software may be updated from time to time by posting to Licensor’s Knowledgebase or by notice to Licensee and is licensed under the terms of their respective end-user licenses. Nothing in this EULA limits Licensee’s rights under, or grants Licensee rights that supersede, the applicable end-user license for such Open Source Software. The terms of this EULA, other than the Disclaimer and the Limitation of Liability, will not apply to the Open Source Software. Licensee also agrees not to use any “FOSS” (Free and Open Source Software, as defined below) in such a way that would cause the non-FOSS portions of the Licensor Technology to be subject to any open source software licensing terms or obligations. "FOSS" means any software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and/or derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License, Affero GPL, or Lesser/Library GPL.
9. Updates and Upgrades; Support. Updates and upgrades, and support are only available to Licensee with a current and active support and maintenance agreement. Licensor shall have no obligation to provide Licensee with updates, upgrades, or support if Licensee does not have a current, paid support and maintenance agreement for the applicable Licensor Technology.
10. License Fees; Invoices; Payment. To the extent permitted by law, orders for Licensor Technology are non-cancellable. The License Fees and Subscription Fees for future purchases and renewals are subject to change by Licensor without notice. Any fees quoted by Licensor shall be valid for thirty (30) days unless such quote is cancelled or revoked earlier by Licensor. The Fees do not include, and Licensee will pay or reimburse Licensor for any and all taxes (except Licensor’s income taxes) and other governmental fees, assessments, duties, and charges that are payable as a result of this transaction. To avoid the imposition of sales and/or use taxes, Licensee must supply Licensor with a “Tax Exemption Certificate” or appropriate other exemption certificate prior to shipment, otherwise Licensee shall remain responsible for such tax. Except as set forth in the Ordering Document:
a. Embedded Software. Except where a separate License Fee is specified in the Ordering Document, the License Fee for Embedded Software shall be included in the purchase price for the corresponding Hardware unit.
b. Perpetual Software. The License Fee for Perpetual Software for the Usage Parameters shall be stated in the Ordering Document. Licensee shall notify Licensor if Licensee’s usage of the Perpetual Software exceeds the Usage Parameters. Licensee shall pay Licensor’s then-current license fee for such overage. Licensee will maintain and, upon request by Licensor, provide a written report on its actual usage of the Perpetual Software.
c. Enterprise Software. The License Fee for Enterprise Software for the licensed Use Cases and Initial Bed Count (if applicable) at the Permitted Facilities shall be stated in the Ordering Document. Where the License Fee is based on Licensed Beds, Licensee shall notify Licensor if Licensee adds any additional beds at a Permitted Facility. Licensee shall pay Licensor’s then-current license fee for each additional bed above the Initial Bed Count. Licensee will maintain and, upon request by Licensor, provide a written report on the number of beds at the Permitted Facilities. Additional License Fees will apply if Licensee adds additional Use Cases or Permitted Facilities.
d. Subscription Software; Cloud Services. The Subscription Fee for Subscription Software and Cloud Services shall be paid on a monthly, quarterly, or annual basis during the applicable Subscription Term as set forth in the Ordering Document. The Subscription Fee for Subscription Software and Cloud Services shall be based upon the Usage Parameters stated in the applicable Ordering Document. Licensee shall notify Licensor if Licensee’s usage of the Subscription Software or Cloud Services exceeds the Usage Parameters. Licensee shall pay Licensor’s then-current subscription fee for such overage. Licensee will maintain and, upon request by Licensor, provide a written report on its actual usage of the Subscription Software and Cloud Services.
e. Invoicing. Licensor shall invoice Licensee for Perpetual Software and the Initial Subscription Terms for Subscription Software or Cloud Services upon: (i) for Licensor Technology delivered physically, upon shipment of physical media to Licensee; or (ii) for digitally delivered Licensor Technology, the date the Licensor Technology is delivered electronically to Licensee or otherwise made available for download or access by Licensee. Licensor shall invoice Licensee at least thirty (30) days in advance of the first day of the upcoming Subscription Period for Subscription Software and Cloud Services.
f. Payment. Except as otherwise stated in the Ordering Document, Client shall pay Seller for all invoiced amounts within thirty (30) calendar days of the invoice date. Seller may require prepayment for Client purchases where the total of all items purchased in such transaction is below two thousand United States Dollars ($2,000 USD). Seller may revise the payment methods it accepts at any time. Seller may apply a surcharge to certain payment methods.
g. Late Payments. Late payments are subject to a charge equal to the lesser of 1.5% per month of the amount outstanding or the maximum allowed by law. Licensee shall reimburse Licensor for all costs and expenses (including attorneys’ fees) in collecting any overdue amounts. All payments shall be made in U.S. Dollars unless specifically noted in the Ordering Document. All amounts payable to Licensor under the Agreement shall be paid by Licensee in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason or any deduction or withholding of tax as may be required by applicable law. Seller may cancel orders, or hold or delay fulfillment where Client is not current on its payment obligations to Seller under this Ordering Document or any other agreement with Seller.
11. Subscription Term. Subscriptions to Subscription Software and Cloud Services shall be on a monthly, quarterly, or annual basis as set forth in the Ordering Document. The initial term for each subscription shall be stated in the Ordering Document (the “Initial Term”). If no Initial Term is stated in the Ordering Document, then the subscription Initial Term shall be: (a) one (1) month for monthly subscriptions; (b) three (3) months for quarterly subscriptions; and (c) one (1) year for annual subscriptions. Upon the expiration of the Initial Term, each subscription shall automatically renew for successive renewal terms equal to the length of the Initial Term (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party elects to not renew the subscription by providing the other party written notice of its intent to non-renew the subscription at least (x) thirty (30) days’ prior to the end of the current Term for monthly and quarterly subscriptions, and (y) ninety (90) days’ prior to the end of the current Term for annual subscriptions.
12. Confidentiality. Confidential Information Licensor (the “Disclosing Party”) provides to Licensee (the “Receiving Party”) under this EULA shall be governed as follows:
a. Scope of Confidential Information. Confidential Information consists of all non-public information disclosed pursuant to the Agreement, however disclosed and in whatever medium: (i) that is designated as “Confidential” or “Proprietary” by the Disclosing Party at the time of disclosure or within a reasonable period thereafter; (ii) that concerns the customers, finances, methods, research, products, prices, terms and conditions, technical information, code, data, processes, procedures, code, inventions, or know-how of the Disclosing Party; or (iii) that by the nature of the circumstances surrounding disclosure, or the information itself, would reasonably enable a person or organization to ascertain its confidential nature (collectively, the “Confidential Information”). Licensor’s Confidential Information expressly includes the Licensor Technology, Documentation, technical information and other code or data of any type provided by Licensor or its agents, the pricing offered by Licensor to Licensee, and the terms and conditions of the Agreement.
b. Treatment of Confidential Information. Receiving Party shall retain the Disclosing Party’s Confidential Information in strict confidence and shall not use such Confidential Information expect for purposes permitted under this Agreement. Receiving Party shall be entitled to disclose Confidential Information on a need-to-know basis to its employees, agents and subcontractors, provided that such employees, agents and subcontractors are bound by nondisclosure and confidentiality obligations no less protective than those set out in the Agreement. Receiving Party shall use at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own, but shall not use less than reasonable care and diligence.
c. Exclusions. Obligations with respect to Confidential Information shall not apply to Confidential Information that the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; (iii) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) is required to be disclosed by law, provided that the Disclosing Party is promptly notified by the Receiving Party in order to provide the Disclosing Party an opportunity to seek a protective order or other relief.
13. Data Use; Data Privacy; Feedback. In connection with Licensee’s license to and use of the Licensor Technology, Licensor will collect contact information concerning Licensee personnel to manage and fulfill Licensee orders. Licensor will also process (a) information necessary to facilitate the delivery of the Licensor Technology, including verifying compliance with the terms of this EULA, invoicing, and providing related services, and (b) Resultant Data. To the extent any of that data includes information which identifies an individual, we will process that information in accordance with Licensor’s Privacy Notice available at www.securitashealthcare.com. Licensee hereby unconditionally and irrevocably agrees to assign and hereby assigns to Licensor all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto. Licensor may use any feedback or suggestions provided by Licensee in connection with its use of the Licensor Technology as part of its business operations.
14. Ownership. All Licensor Technology is licensed and not sold. Licensor (and its suppliers or licensors, as applicable) shall retain all Intellectual Property Rights (including, without limitation, all worldwide right, title and interest, related goodwill, and confidential and proprietary information) in and to (a) the Licensor Technology, Documentation, and Confidential Information; (b) any third party products included in the Licensor Technology, Documentation, or Confidential Information or that Licensor otherwise provided to Licensee (“Third-Party Product”); and (c) any modifications and any derivative works based on or including any part of the Licensor Technology, Documentation and Confidential Information. Licensee’s rights to the aforementioned items are limited to the rights expressly granted in this EULA. Further, no license is granted to Licensee in the human readable code of the Licensor Technology (source code). This EULA does not grant Licensee any rights to patents, copyrights, trade secrets, trademarks, or any other rights with respect to the Licensor Technology or Documentation. No course of conduct or other construction or interpretation shall be construed to grant Licensee any rights other than those expressly provided in this EULA. Licensee shall not use any Third-Party Product separately or apart from the Licensor Technology. Customer acknowledges and agrees that violation of the license(s) granted herein, including any prohibited uses, will cause Licensor actual and material damage and will violate Licensor’s Intellectual Property Rights which are protected by U.S. and international laws.
15. Intellectual Property Infringement.
a. General. Licensor shall defend the Licensee against any third party suits, actions, claims or proceedings against Licensee alleging that the Licensor Technology infringe or misappropriate such third party’s Intellectual Property Rights and Licensor agrees to reimburse the Licensee for any damages finally awarded against the Licensee by a court of competent jurisdiction that may result from any such third-party claim.
b. Notification. Licensee shall promptly notify Licensor in writing of any claim or demand for which Licensor is responsible under this indemnity, and will cooperate with Licensor to facilitate the defense or settlement of such matter.
c. Limitation. Licensor shall have no obligation under this Section 14 or otherwise for any infringement suit or action based on (i) the use of a superseded or altered release of the Licensor Technology, (ii) the combination, operation, or use of the Licensor Technology with hardware, data, or other materials not furnished by Licensor, (iii) use of the Licensor Technology other than as permitted under this EULA or the Documentation, (iv) modification to the Licensor Technology made by a party other than Licensor, (v) Licensor’s compliance with any specifications or plans provided by Licensee, or (vi) any other use or modification of Licensor Technology that is out of compliance with the license, Documentation, or the EULA.
d. Exclusive Obligation. The foregoing Licensor indemnity states the sole obligation and exclusive liability of Licensor and the Licensee’s sole recourse and remedy, for any claim of infringement or misappropriation of an Intellectual Property Right or proprietary right of the Licensor Technology.
e. Licensor’s Right to Proactive Correction. If Licensor believes the Licensor Technology has become or is likely to become subject to an infringement suit or action, Licensor may (a) replace or modify the Licensor Technology so that it becomes non-infringing; (b) procure for Licensee the right to continue using the Licensor Technology under the terms of this EULA; or (c) (i) for Embedded Software, Perpetual Software, and Enterprise Software, refund or credit Licensee for the License Fee of the infringing Embedded Software, Perpetual Software, and Enterprise Software, upon certification of destruction if within one (1) year of original purchase fees paid, or the net book value of the same based upon a five (5) year useful life; and (ii) for Subscription Software and Cloud Services, refund or credit Licensee a prorated portion of the Subscription Fee for the remainder of the unexpired Term. The foregoing states Licensor’s entire liability and Licensee’s sole and exclusive remedy for infringement or misappropriation suits and actions of any kind.
16. Limited Licensor Technology Warranty.
a. Limited Licensor Technology Warranty. For a period of ninety (90) days from the date Licensee first purchased a license or access (as evidenced by Licensor’s records) to the Licensor Technology (the “Licensor Technology Warranty Period”), the Licensor Technology will substantially comply with the Documentation. Licensor does not warrant that the Licensor Technology will meet Licensee’s requirements, that the Licensor Technology will operate in the combinations that the Licensee may select for use, that Licensee’s use of the Licensor Technology will be uninterrupted or error-free, or that any security mechanisms implemented by the Licensor Technology will not have inherent limitations. Licensor and its licensors’ sole liability, and Licensee’s exclusive remedy, for any breach of this warranty will be, in Licensor’s sole discretion, to use commercially reasonable efforts to provide Licensee with an error-correction or work-around which corrects the breach, or if in Licensor’s sole opinion, the foregoing remedy is not feasible, accept return of the Licensor Technology and refund or credit Licensee for the Licensor Technology subject to the warranty claim. Notwithstanding anything to the contrary herein, Licensor will have no obligation with respect to a warranty claim unless notified of such claim in writing by Licensee within the Licensor Technology Warranty Period. No update, upgrade, patch, error correction, work-around, or other remedy provided to Licensee will extend the original Licensor Technology Warranty Period.
b. Exclusions. The Limited Licensor Technology Warranty will not apply: (1) if the Licensor Technology is used with hardware or software not specified in the Documentation; (2) if any modifications are made to the Licensor Technology by Licensee or any third party; (3) to any defects in the Licensor Technology due to Licensor’s accident, abuse, neglect, catastrophe, or improper use; (4) if reported errors or nonconformities cannot be reproduced by Licensor (or its agent or subcontractor); and (5) to Licensor Technology provided on a no charge or evaluation basis.
c. Warranty Disclaimer. THE WARRANTIES IN THIS EULA ARE LIMITED WARRANTIES AND SET FORTH THE ONLY WARRANTIES MADE BY LICENSOR. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS EULA, ALL LICENSOR TECHNOLOGY, HARDWARE, PRODUCTS, AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS.” LICENSOR, ITS LICENSORS AND SUPPLIERS DO NOT MAKE ANY OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY, LEGAL, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LICENSOR OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS EULA. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OR STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LICENSOR TECHNOLOGY WARRANTY PERIOD. LICENSEE ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS EULA, AND THAT NO WARRANTIES OF ANY KIND WHATSOEVER HAVE BEEN MADE BY ANY OF LICENSOR’S LICENSORS OR SUPPLIERS. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
17. Limitation of Liability and Damages. LICENSOR, ITS AGENTS, ITS LICENSORS, AND ITS SUPPLIERS SHALL NOT BE LIABLE TO LICENSEE OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, LOST DATA, FAILURE OF ANY SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING PUNITIVE DAMAGES OR LOST PROFITS OR REPUTATIONAL DAMAGES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LICENSOR’S, ITS AGENTS’, ITS LICENSORS’, AND ITS SUPPLIERS’ ENTIRE AGGREGATE LIABILITY TO LICENSEE IN CONNECTION WITH OR RELATING TO THIS EULA, THE AGREEMENT, AND THE USE OF THE LICENSOR TECHNOLOGY, WHETHER IN CONTRACT, TORT, CIVIL LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (A) ONE THOUSAND UNITED STATES DOLLARS ($1,000), OR (B) AMOUNTS ACTUALLY PAID OR PAYABLE BY LICENSEE TO LICENSOR FOR LICENSOR TECHNOLOGY UNDER THIS EULA IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 17 SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS EULA IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT LICENSOR HAS SET ITS PRICES AND ENTERED INTO THIS EULA IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN LICENSEE AND LICENSOR AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES.
18. Termination and Suspension.
a. Termination. In addition to all rights to terminate set forth in the Agreement, either party may terminate this EULA immediately if the other party:
i. Fails to cure any material breach of this EULA within thirty (30) days after it has received notice of such material breach;
ii. Ceases operation without a successor;
iii. Becomes insolvent, fails to pay its bills as due or makes an assignment for the benefit of its creditors, seeks protection under any bankruptcy, insolvency, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and is not dismissed within sixty (60) days).
b. Termination for Convenience. Licensor may terminate this EULA without cause upon thirty (30) days’ prior written notice to Licensee.
c. Effect of Termination. Licensee’s license to Embedded Software terminates automatically upon transfer of the associated Hardware. Upon termination or expiration of this EULA, Licensee shall immediately cease use of and destroy all copies of Licensor Technology (except Perpetual Software, unless this EULA is terminated by Licensor for cause), and any unpaid License Fees shall become immediately due and payable by Licensee.
d. Suspension. Licensor may immediately suspend Licensee’s rights and ability to access and use the Licensor Technology if Licensee breaches the terms of this EULA or the Agreement, including without limitation nonpayment of License Fees and/or Subscription Fees.
e. Survival. Sections 4 and 10 through 21 (inclusive), and any other term which, by its terms, requires performance after the termination of the EULA or Agreement, or has application to events that may occur after such termination, survive the termination or expiration of this EULA or Agreement.
19. United States Government Restricted Rights. All Software, Cloud Services and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to FAR 12.212 and DFARS 227.7202. All US Government end users acquire the Software, Cloud Services and Documentation with only those rights set forth in this EULA. Any provisions that are inconsistent with federal procurement regulations are not enforceable against the US Government.
20. Governing Law and Venue. This EULA and performance under it will be governed by, without reference to or application of any conflicts of law provisions, the laws of: (a) if Licensor is located in the United States of America or Canada, the State of Delaware; and (b) if Licensor is located outside of the United States of America or Canada, the laws of the country where the applicable Licensor entity is located.
21. General Provisions
a. Audit. Upon reasonable prior notice, Licensor shall have the right to audit Licensee’s use of the Licensor Technology during normal business hours to determine compliance with this EULA. If the audit reveals use of the Licensor Technology which is not permitted, including without limitation use of the Licensor Technology in excess of the Usage Parameters, then without derogating from Licensor’s rights hereunder, Licensee shall pay Licensor in accordance with the results and reimburse Licensor the costs of such audit.
b. Independent Contractors. The parties to this EULA are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, agency or otherwise created under this EULA. Neither party has, and neither party will represent to any third-party that it has the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.
c. Compliance with Laws and Documentation. Licensee shall comply with all federal, state, and local laws, regulations, and ordinances applicable to its business and activities. Licensee further agrees that it shall only use the Licensor Technology in accordance with the Documentation.
d. Export. Client warrants and undertakes that: (i) neither Client, its affiliates, nor any of their respective officers or directors, is a Listed Person; (ii) it shall observe and comply fully with all Export Control and Sanctions Laws; and (iii) it will not engage in any transaction involving the Hardware, Software, or Services that has the purpose or effect of violating, circumventing, evading, or avoiding, the Export Control and Sanctions Laws. Client shall not, directly or indirectly, sell, export, re-export, transfer, re-transfer or otherwise release or dispose of the Hardware, Software, or Services: (iv) to, or for the benefit of, a Listed Person; (v) to any party in, or for use in, Afghanistan, Belarus, Crimea and non-Ukraine government controlled areas of Ukraine, Cuba, Iran, North Korea (DPRK), Russia, Sudan, Syria or Venezuela; (vi) without having obtained licenses or authorizations necessary under the Export Control and Sanctions Laws, or otherwise in breach of such licenses or authorizations obtained by Seller; or (vii) for military end-use or to a military end-user without obtaining Seller’s prior approval. Client shall as promptly as possible, and in any event within five (5) business days, inform Seller in writing of any suspected or alleged breach of this Section by Client. Following any reasonably suspected breach of this Section, Seller has the discretionary right to refuse any further performance under this Agreement and to unilaterally terminate this Agreement with immediate effect, without incurring any liabilities whatsoever.
e. No Resale. Client agrees that all products and services purchased hereunder are for Client’s internal commercial use only and may not be resold or otherwise transferred to any third party without Seller’s prior written consent, which may be conditioned or withheld in Seller’s sole discretion.
f. Limitation of Actions. Licensee agrees that any claim must be demanded or otherwise instituted within two (2) years of when Licensee knew or should have known of the claimed breach or other violation. Failure to commence the claim within this time period shall constitute an absolute bar to any proceedings and a waiver of all such claims.
g. Force Majeure. Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this EULA for any failure or delay in fulfilling or performing any obligation (except with respect to the payment of fees), when and to the extent such failure or delay is caused by circumstances beyond such party’s reasonable control, including without limitation acts of God, flood, fire, terrorism, invasion, strikes (except with respect to a party’s own labor force), pandemic, epidemic, shortages, lockouts, riots, civil unrest, acts of war, earthquake, fire, explosions, natural disasters, refusal of license by any governmental agency, or power or connectivity interruptions.
h. Remedies. Except as expressly stated herein, no remedy conferred by any of the provisions of the EULA is intended to be exclusive of any other remedy, and each remedy is cumulative and in addition to every other remedy available to a party hereunder or otherwise at existing law, equity, by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue any other available remedies. Licensee acknowledges that any actual or threatened breach of this EULA will constitute immediate, irreparable harm to Licensor for which monetary damages alone would be an inadequate remedy and that equitable or injunctive relief is an appropriate remedy in addition to any other remedies that may be available to Licensor.
i. Assignment and Subcontracting. Licensor may subcontract or assign its rights and delegate its obligations under this EULA, in whole or in part, without Licensee’s prior consent. Licensee may not assign or delegate the EULA without Licensor’s prior written consent (which consent shall not be unreasonably withheld).
j. Severability. If any provision of this EULA is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will remain enforceable and in full force and effect.
k. No Third Party Beneficiaries. There are no third party beneficiaries of this EULA except to the extent expressly stated herein.
l. Modifications to this EULA. Licensor may change this EULA or any of its components by updating this EULA on www.securitashealthcare.com. Changes to the EULA apply to any Licensor Technology license acquired or renewed after the date of modification.
m. Headings. Section headings used in this EULA are for convenience and not to be used in interpreting this EULA.
n. Notice. Delivery of any notice by a party shall be legally valid and effective through: (i) delivering the document through personal delivery; (ii) delivering the document through commercial delivery with delivery confirmation (e.g. FedEx, UPS, USPS); (iii) transmitting the document by facsimile transmission, electronic mail in “portable document format” (i.e., “.pdf”), or other electronically scanned format; or (iv) delivering the document by electronic means with delivery confirmation (e.g., DocuSign®).
Notice Address for Licensor:
4600 Vine St.
Lincoln, NE 68503
Attn: Legal Department
Email: [email protected]
Notices to Licensee shall be sent to the Licensee address on the Agreement, if any.
22. Definitions. The following definitions shall apply:
a. “Cloud Services” means the software-as-a-service offering or other cloud-enabled feature provided by Licensor (or its licensor or subcontractor) which is provided to Licensee on a subscription basis.
b. “Documentation” means the standard written materials associated with the Software and/or Hardware.
c. “Embedded Software” means Software programmed into memory contained on Hardware.
d. “Export Control and Sanctions Laws” means all customs, import, export, re-export, trade and export control and economic or financial sanctions laws, regulations and orders imposed, administered, enacted and/or enforced by the United Nations (UN), the European Union (EU) and its member states, the United States of America (US), the United Kingdom (UK), or any applicable jurisdiction.
e. “Hardware” means the applicable Licensor hardware products.
f. “Intellectual Property Right” means any patent, copyright, trade name, trademark, service mark, mask works, trade secret, know-how, or any other intellectual property right or proprietary right, whether registered or unregistered, and whether now known or hereafter recognized in any jurisdiction.
g. “License Fees” means the fees payable by Licensee to Licensor for the licenses to Licensor Technology granted herein.
h. “Licensor Technology” the Software and/or Cloud Services licensed by Licensee from Licensor pursuant to this EULA.
i. “Listed Person” means any natural or legal person which is itself specially designated, blocked or otherwise individually targeted, or fifty percent (50%) or more (directly or indirectly and either individually or in the aggregate) owned or otherwise controlled by any natural or legal person that is specially designated, blocked or otherwise individually targeted, under any Export Control and Sanctions Laws.
j. “Ordering Document” means the quote, order form, or other Licensor document incorporating or referencing this EULA.
k. “Permitted Facilities” means those facilities of Licensee and its affiliates stated in the Ordering Document at which Licensee may use the Enterprise Software.
l. “Perpetual Software” means Software that is licensed by Licensee from Licensor on a perpetual basis.
m. “Resultant Data” means data and information related to Licensee’s use of the Hardware or Software that is collected, developed or used by Licensor in an aggregated and deidentified manner, including, without limitation, to compile statistical and performance information related to the provision and operation of the Hardware and Software.
n. “Subscription Fees” shall mean the recurring fees payable by Licensee to Licensor during the Subscription Term for the license to Subscription Software or right to use Cloud Services granted hereunder.
o. “Subscription Software” means Software that is licensed by Licensee from Licensor for a specific term.
p. “Software” means the Embedded Software, Perpetual Software, Subscription Software, and/or Enterprise Software licensed to Licensee by Licensor, including all updates and Documentation to the same.
q. “Usage Parameters” means the parameters, or limitations on Licensee’s usage of the applicable Licensor Technology stated in the Ordering Document or the applicable Product/Service-Specific Terms, including without limitation the quantity of Licensor Hardware that may be used with the Licensor Technology.
