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Software License Agreement

Before you download any software components or files, please read the BridgeHead Software License Agreement:

SOFTWARE LICENSE AGREEMENT By clicking "I Agree" you are saying that you have read the agreement, have understood it and that you agree to its terms. Also that you agree that the agreement supersedes all prior agreements and understandings between us, whether written or oral, related to the subject matter of the agreement. The agreement is intended by both of us to be the complete and exclusive statement of the terms of our agreement. No modification, addition to, or waiver of any of the terms hereof shall be effective unless in writing and signed by authorized representatives of both parties. If you cannot accept the terms of the agreement, please contact your local BridgeHead representative. You may not use the SOFTWARE unless you have accepted the terms of the agreement. BRIDGEHEAD SOFTWARE LIMITED END USER LICENCE AGREEMENT All Intellectual Property Rights in the BridgeHead Software products and any documentation provided to the Customer (whether electronic or printed) which accompanies the same are owned by or have been licensed to the BridgeHead entity (being either BridgeHead Software Limited or BridgeHead Software, Inc.) (the relevant entity hereafter being referred to as "BridgeHead") whose details are set out in an Order placed by you and accepted by BridgeHead in writing or by email or by provision of the Software ("Accepted Order"). PLEASE READ THIS END USER LICENCE AGREEMENT ("EULA") CAREFULLY BEFORE USING THE SOFTWARE ACCOMPANYING IT. BY PLACING AN ORDER, BY ACCEPTING THIS EULA ELECTRONICALLY OR IN ANY OTHER WAY, OR BY RUNNING, INSTALLING, DOWNLOADING OR OTHERWISE USING THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, YOU ACCEPT, ON BEHALF OF THE ORGANISATION THAT HAS PROCURED THIS SOFTWARE FOR YOUR USE (THE "CUSTOMER") AGREE TO BE BOUND BY THE TERMS OF THIS EULA, AND THE SUPPORT TERMS, THROUGHOUT THE TERM (AS DEFINED BELOW). YOU WARRANT THAT YOU ARE AUTHORISED TO ENTER INTO BINDING CONTRACTS ON BEHALF OF THE CUSTOMER. IF YOU OR THE CUSTOMER DO NOT AGREE TO THE TERMS OF THIS EULA AND THE SUPPORT TERMS, DO NOT RUN, INSTALL, DOWNLOAD, COPY OR OTHERWISE USE THE SOFTWARE OR ACCOMPANYING DOCUMENTATION. IT IS AGREED as follows: 1 DEFINITIONS AND INTERPRETATION 1.1 In this EULA the following words shall have the following meanings: "Charges" means the charges payable by the Customer to BridgeHead for the provision of the Software, as set out in the Accepted Order(s) "Control" means the possession (directly or indirectly) of fifty per cent (50%) or more of the voting stock or other equity interest of a subject entity with the power to vote, or the power in fact to control the management decisions of such entity through the ownership of securities or by contract or otherwise. "Documentation" means all operating manuals, user manuals and user documentation and any other documentation provided to the Customer by BridgeHead in hard or electronic copy which is associated with the use or provision of the Software. "Effective Date" means the effective date of each Accepted Order, which shall be the earlier of: a) the date on which Bridgehead accepts the applicable Order in writing or by email; b) the date on which BridgeHead provides the Software to you in connection with the applicable Accepted Order; or c) the commencement of the Minimum Term, as set out below. "Environment" means the software and hardware environment provided or procured by BridgeHead or the Customer, as set out in the Accepted Order, which shall comply at all times with the Minimum Requirements. "Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. "Force Majeure" means natural disaster, war, hostilities, riot, fire, explosion, accident, flood, sabotage, lack of adequate power, failure of telecommunications networks, raw materials or labour, failure of a supplier, strike, lock-out or injunction, compliance with governmental laws, regulations or orders, epidemic or pandemic, sickness or indisposition of key BridgeHead employees, or any other cause whether or not of the class or kind enumerated which affects performance of an Accepted Order to which this EULA applies arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected. "Licence Scope" means the permitted scope of use of the Software, as set out in the Accepted Order. "Minimum Requirements" means the minimum technical requirements of the Environment, as set out in the Documentation. "Minimum Term" means the period commencing as follows: a) where BridgeHead is providing installation in respect of the Software, the 1st of the month closest to date on which such installation is complete (which may be either before or after completion of the installation); b) in all other events, the 1st of the month closest to the date on which Bridgehead accepts the applicable Order in writing or by email; and continuing for the minimum term set out in the Accepted Order or, where no minimum term is set out in the Accepted Order, for a period of one (1) year from commencement. "Order" means either (i) an order or purchase order requesting the provision of Software and Support submitted by the Customer to BridgeHead, or (ii) the acceptance by the Customer of one or more Quotations for Software and Support; or (iii) a statement of work or other written agreement for the provision of the Software and Support by BridgeHead, signed by the Customer. "Quotation" means a quotation for the provision of Software and/or Support which has been prepared by BridgeHead and delivered to the Customer (in hard or electronic copy). Unless otherwise specifically set out to the contrary in a Quotation, all Quotations shall be valid for thirty (30) days from the date of issue. "Renewal Term" means the renewal term of the licence granted hereunder, which shall be as set out in the Accepted Order, or where no renewal term is set out in the Accepted Order, will be successive periods of one (1) year each commencing on the day after the last day of the Minimum Term. "Software" means the current version (as at the date of the Accepted Order) of the software product(s) and/or service(s) provided to the Customer by BridgeHead, as set out in the Accepted Order, and all subsequent versions provided to the Customer pursuant to the Support Terms. "Support" means the support and maintenance to be provided to the Customer in respect of the Software, as set out in the Support Terms. "Support Terms" means the terms for the provision by BridgeHead to the Customer of Support in respect of the Software, as provided to the Customer in writing either as a separate document, as part of the User Guide provided to the Customer, or as available on BridgeHead’s website. "Term" means the term of the applicable Accepted Order, which shall be the Minimum Term together with each Renewal Term. 1.2 The headings are included for convenience only and shall not affect the interpretation or construction of this EULA. 2 ORDER AND ACCEPTANCE PROCESS 2.1 Each Order shall be deemed to be an offer by the Customer to obtain (i) a licence for the Software, subject to and incorporating the terms set out in this EULA and (ii) Support in connection with the Software subject to the Support Terms. The Customer shall procure that each Order is complete and accurate. A binding contract shall not come into existence between BridgeHead and the Customer in respect of an Order, until acceptance of such Order by BridgeHead. Each Accepted Order shall form a separate contract between BridgeHead and the Customer (each a "Contract"). Each such Contract shall be in respect of both the Software and the Support in connection with the same, and each such Contract shall be subject to the terms of both this EULA and the applicable Support Terms. 2.2 At any time prior to its acceptance of an Order, BridgeHead may make amendments to Quotations if Software products or services change. No Quotation shall be binding on BridgeHead until it has accepted an Order from the Customer. 3 GRANT AND SCOPE OF RIGHTS 3.1 In consideration for, and subject to payment of the Charges payable in connection with the applicable Accepted Order and the Customer’s compliance with all the terms of this EULA, BridgeHead hereby grants to the Customer a non-exclusive, non-transferable, limited licence to install (or have installed) the Software in the Environment, and to use the Software for the Term in accordance with the Licence Scope set out in the Accepted Order. 3.2 Save as otherwise expressly set out in the Accepted Order, the licence to the Software granted hereunder is personal to the Customer and no subsidiary or holding company of the Customer shall have any rights hereunder. 3.3 The Customer shall (i) register the Software via the standard software license key supplied by BridgeHead from time to time; (ii) keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software; and (iii) supervise and control use of the Software and ensure that the Software is used by its users in accordance with the terms of this EULA and all instructions provided by BridgeHead and/or set out in the applicable Documentation. 3.4 Except as expressly permitted in an Accepted Order, Customer shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security, and in each case where such copies reproduce all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; (iii) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes (save as expressly permitted in an Accepted Order), or otherwise transfer the Software or Customer's right and license to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of BridgeHead affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by the Accepted Order. 4 INTELLECTUAL PROPERTY RIGHTS 4.1 The Customer acknowledges that all Intellectual Property Rights in the Software and the Documentation anywhere in the world belong to BridgeHead, that rights in the Software and Documentation are licensed (not sold), and that the Customer has no rights in, or to, the Software or the Documentation other than the right to install and use them in accordance with the terms of this EULA. 4.2 If the Customer distributes the Software in violation of this EULA, the Customer hereby indemnifies, holds harmless and defends BridgeHead, its subsidiaries, affiliates, authorized resellers and suppliers from and against any claims or lawsuits, including attorney’s fees that arise or result from the use or distribution of the Software in violation of this EULA. 4.3 BridgeHead, at its expense and in its sole discretion, shall defend any claim, demand, action or proceeding against the Customer asserting that the Software infringes any Intellectual Property Rights of any third party (each an "Infringement Claim") and shall pay any final judgments awarded or settlements entered into with such third party, provided that the Customer gives prompt written notice to BridgeHead of any such Infringement Claim, grants BridgeHead the full authority to proceed as contemplated herein, gives such assistance and information as BridgeHead may reasonably require in connection with the investigation, defence or settlement of such Infringement Claims and uses all reasonable endeavours to mitigate the sums which may be payable by BridgeHead hereunder. The foregoing obligations shall not apply to the extent the alleged infringement arises as a result of or is based upon (i) modifications to the Software not performed by BridgeHead; or (ii) use or combination of Software with other programs or data other than expressly set out in an Accepted Order; or (iii) breach by the Customer of any of its obligations hereunder. 4.4 In the event any such Infringement Claim is brought or threatened, BridgeHead may at its sole option and expense: (i) procure for Customer the right to continue use of the Software or the allegedly infringing part thereof; (ii) modify or amend the Software or the allegedly infringing part thereof, or replace the Software so the Software or part thereof as so modified, amended or replaced has substantially the same or better capabilities as the original Software or part thereof; or (iii) if neither of the foregoing solutions is commercially practicable, BridgeHead may terminate the applicable Accepted Order with respect to the allegedly infringing part of the Software and refund any monies paid by Customer for such part which relates to a period after the date of termination. BridgeHead will then be released from any further obligation whatsoever to Customer in connection with the alleged infringing part of the Software. 5 CHARGES AND PAYMENT 5.1 The Customer shall pay the Charges set out in the Accepted Order in accordance with the payment terms set out in the applicable Accepted Order or herein (as applicable). BridgeHead reserves the right to increase the Charges at any time on the provision of sixty (60) days written notice to the Customer. For the avoidance of doubt, the Customer’s continued use of the Software following the expiry of such notice period shall be deemed to be the Customer’s acceptance of the variation to such Charges. 5.2 BridgeHead will issue invoices to the Customer in accordance with the terms set out in the Accepted Order or, if not specified in the Accepted Order, monthly in arrears. 5.3 The Customer shall pay the Charges in accordance with the terms of the Accepted Order or, where no payment terms are set out in the Accepted Order, within thirty (30) days of invoice date. 5.4 All Charges are exclusive of Value Added Tax and all other sales taxes that may apply now or in the future (if any) which shall be payable by the Customer. Where applicable the Charges are also exclusive of other fees and charges payable to any third party, including but not limited to third party hardware and software suppliers, Internet service providers, domain name and company registries. 5.5 BridgeHead reserves the right to charge the Customer interest on any payment not made by the due date in the relevant invoice. Interest will be calculated on a daily basis, both before and after any judgement, at the rate of six and one half (6.5%) per cent per annum above the base rate from time to time of the Bank of England for the period from the date such payment is due until the date on which it is actually paid. Such payment shall be compounded quarterly and payable on demand. 6 WARRANTIES AND LIABILITIES 6.1 BridgeHead warrants that the Software will function substantially in accordance with the Documentation for a period of ninety (90) days from BridgeHead’s delivery of the Software ("Warranty Period"). In the event of a breach of the warranty provided under this clause 6.1 BridgeHead shall use reasonable efforts to repair such significant defects in the Software that arise and are reported to BridgeHead within the Warranty Period. Such reasonable efforts by BridgeHead shall constitute BridgeHead’s sole obligation, and the Customer’s sole remedy, for any breach of the warranty provided under this clause 6.1. 6.2 Other than the express warranty set out herein, all warranties, representations, guarantees, conditions and terms, whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby excluded to the fullest extent permissible by law. 6.3 No action to enforce any claim arising out of, or in connection with the transaction which is the subject matter of this agreement, shall be brought by the Customer against BridgeHead more than (2) two years after the cause of action has occurred. 6.4 Subject to clause 6.5, 6.6 and 6.7, the maximum aggregate liability of BridgeHead (including its respective agents and sub-contractors) arising from or in connection with an Accepted Order, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the total Charges paid by the Customer in connection with the licence for the Software under the applicable Accepted Order in the 12 months prior to the date on which the liability first arose. 6.5 Subject to clause 6.6 and 6.7, in no event shall BridgeHead (including its respective agents and sub-contractors) be liable for: (i) any loss of profits, anticipated savings, loss of data, business interruption, loss of use, loss of contracts, loss of management time, loss of goodwill and reputation (whether direct or indirect); (ii) any special, indirect, incidental, punitive, exemplary, or consequential damages arising out of or in connection with this EULA or the Accepted Order, even if BridgeHead has been advised of the possibility of such damages; whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if it is advised of the possibility of such loss. 6.6 Subject to clause 6.7, in no event shall BridgeHead (including its respective agents and sub-contractors) be liable for: (i) any unauthorised access to the Software; (ii) any failure of the Software which results from inappropriate use, maintenance, development, modification, repairs or adaptation by the Customer or any third party not authorised by BridgeHead which is not in accordance with standard use of the Software or BridgeHead’s specific instructions; or (iii) any failure of the Software that is due to any integration or interoperability issues arising with any third party or Customer systems or legacy systems, other than to the extent the same is expressly set out in the relevant Accepted Order. 6.7 Nothing in this EULA shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation or any other liability that cannot be excluded, restricted or limited under applicable law. 6.8 Both parties accept that the limitations and exclusions set out in this EULA are reasonable having regard to all the circumstances. 7 TERM AND TERMINATION 7.1 Each Accepted Order shall come into force on the Effective Date and shall remain in force for the Minimum Term set out therein and thereafter for successive Renewal Terms until terminated by either party on the provision of not less than ninety (90) days’ notice in writing, such notice to expire at the end of the then current Minimum Term or Renewal Term, unless terminated earlier in accordance with clause 7.2. For the avoidance of doubt, the Support provided pursuant to an Accepted Order may not be terminated where the licence for the applicable Software remains in force. 7.2 In any event the Accepted Order may be terminated immediately on written notice: (i) by either party if the other party is in material breach of its contractual obligations and has not remedied such breach within thirty (30) days after receipt of a written notice of default from the other party; (ii) by either party if the other party is declared bankrupt, is granted a suspension of payments or begins negotiations for a composition with its creditors or is otherwise insolvent; or (iii) by BridgeHead if there is a change of Control in the Customer or the Customer’s parent company. 7.3 Termination of an Accepted Order shall be without prejudice to any rights of either party arising on or before termination. For the avoidance of doubt, other than where the Customer has terminated due to BridgeHead’s material breach, in no event shall the Customer be entitled to any refund of Charges paid hereunder. 7.4 The provisions of clauses 5 (to the extent of any unpaid obligations), 6, 7.3, 7.4, 8, 10 and 11 and any clauses required for their interpretation shall survive the termination of an Accepted Order and shall remain in full force and effect. 8 CONFIDENTIALITY 8.1 Neither party will during the Term or after it has ended (except as required by law or to its professional advisers and insurers on a need to know basis disclose to any person any confidential information or trade secrets relating to the other’s business. Such matters include, without limitation, information or secrets relating to: corporate and marketing strategy, business development and plans, sales reports and research results, business methods and processes, technical information and know-how relating to the other’s business and which is not in the public domain, including inventions, designs, programmes, techniques, database systems, formulae and ideas; business contacts, lists of customers and suppliers and details of contracts with them; and any document marked "confidential". 8.2 During the Term and for a period of five (5) years after its termination, the parties will use all reasonable endeavours to prevent the publication or disclosure of any such information or secrets. These restrictions will not apply during or after this agreement has terminated to information which has become available to the public generally, otherwise than through unauthorised disclosure. 9 DATA COLLECTION BridgeHead may, at times, collect a subset of product usage data. For example, upon registration of the Software, the number and versions of the Software in use may be collected as well as Windows OS and licence usage metrics. BridgeHead will not collect or use Customer or patient data without prior written authorisation by Customer. 10 FORCE MAJEURE 10.1 If BridgeHead is prevented or delayed from or in performing any of its obligations under this EULA by Force Majeure, then: (i) its obligations under this EULA (or, where the Force Majeure only affects some of the Software, such obligations as relate to those Software) shall be suspended for so long as the Force Majeure continues and to the extent that that party is so prevented, hindered or delayed; (ii) the parties shall, without prejudice to the other provisions of this clause, consult with a view to taking such steps as may be appropriate to mitigate the effects of such Force Majeure; (iii) the parties shall use all reasonable endeavours to mitigate the effects of the Force Majeure upon the performance of its obligations under this EULA. 10.2 If any Force Majeure prevails for a continuous period in excess of ninety (90) days, either party shall be entitled to terminate the applicable Accepted Order in its entirety (if the provision of all Software is affected by Force Majeure) or in part (insofar as it relates to the Software affected by Force Majeure) by giving not less than ten (10) days’ notice in writing to the other party. 11 GENERAL 11.1 This EULA hereto constitutes the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this EULA. 11.2 Each of the parties acknowledges that in entering into this EULA on the terms set out herein it has not relied on or been induced to enter into this EULA by any representation, warranty, undertaking, promise or assurance made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of this EULA other than those expressly set out in this EULA or any applicable Statement of Work. 11.3 If any part of any provision of this EULA shall be invalid or unenforceable, then the remainder of such provision and all other provisions of this EULA shall remain valid and enforceable. 11.4 Save as otherwise set out in any Accepted Order, no amendment or variation of the terms of this EULA shall be effective unless it is made or confirmed in a written document signed by both parties. 11.5 No delay in exercising or non-exercise by either party of any of its rights under or in connection with this EULA shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it. 11.6 Nothing in this EULA or any document referred to in it or any arrangement contemplated by it shall be construed as creating a partnership between the parties for any purpose whatsoever and neither party shall have the power or authority to bind the other party or impose any obligations on it to the benefit of any third party. 11.7 No person other than a party to this EULA shall have the rights to enforce any term of this EULA. The Customer may not assign any of its rights under this EULA without the prior written consent of BridgeHead and may not permit any third party to use any of the Software other than with BridgeHead’s written consent. 11.8 This EULA shall be governed and construed in accordance with the following laws: 11.8.1 if the Customer enters into an Accepted Order with BridgeHead Software, Incorporated then this EULA shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts and the parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of Massachusetts to settle any disputes that may arise in connection with this EULA and the applicable Accepted Order. 11.8.2 if the Customer enters into an Accepted Order with BridgeHead Software Limited then this EULA shall be governed and construed in accordance with laws of England and Wales and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any disputes that may arise in connection with this EULA and the applicable Accepted Order. 11.9 Any notice required or permitted under the terms of this EULA or required by law must be in writing and must be: delivered in person; sent by registered mail return receipt requested; sent by overnight air courier; transmitted by facsimile; or transmitted by email in each case forwarded to the appropriate address set forth in the applicable Accepted Order. Either Party may change its address for notice by written notice to the other Party. Notices will be considered to have been given at the time of actual delivery in person, or three (3) business days after posting, or one (1) day after (i) delivery to an overnight air courier service or (ii) the moment of transmission by facsimile or email with receipt of such facsimile or email confirmed.

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