SOFTWARE LICENSE AGREEMENT


This Software License Agreement (“Agreement”) is a legal document between you (“Client” or “You”) and Augur Enterprises, Inc. (“LICENSOR”). This Agreement states the terms and conditions under which You may use the Software (as defined below). By clicking the accept button You indicate that You have read and understand this Agreement and agree to be bound by the terms and conditions of this Agreement. If You do not accept this Agreement, You must click the reject button and shall not use or access the Software.


1. DEFINITIONS. The following terms shall have the meanings set forth below:

“Administrator User” is an employee of CLIENT who performs operational related roles supported by the Software and administrates Session Manager Users and provides Session Manager Users with access to the Software. The Administrator User shall assign each Session Manager User with a unique user identification.

“Generated Report” is a report generated by the Software using CLIENT supplied data.

“Licensed Computer” means the specific computer platform and operating system and related workstations as identified in writing by CLIENT on the Effective Date on which the Software is used or installed.

“Session Manager User” is either an employee of CLIENT or a Business Third Party who has been assigned a unique user identification by an Administrator User to conduct assessments supported by the Software.

“Report User” is either an employee of CLIENT or a Business Third Party who interprets Generated Reports. Report Users must have verified clinical and psychometric credentials.

“Business Third Party” is a third party that has entered into an independent contractor or similar relationship with CLIENT whereby such third party shall interpret Generated Reports or conduct assessments supported by the Software.

“Software” means (a) version 1.0.2 of the MIDSA software product made available under this Agreement to CLIENT by LICENSOR; (b) the user and clinical documentation provided by LICENSOR hereunder; and (c) all copies of the foregoing. Except as may be designated otherwise by LICENSOR in the ordinary course of its business, the source code for the Software shall not be made available to CLIENT.

2. OWNERSHIP. CLIENT acknowledges that the Software and all copyrights, patents, trade secrets and other rights, title and interest therein, are the sole property of LICENSOR or its related entities. CLIENT shall gain no right, title or interest in the Software by virtue of this Agreement other than the non-exclusive right of use granted herein. Without limiting the foregoing, CLIENT specifically acknowledges LICENSOR’s exclusive rights to ownership in any copy, modification, translation, adaptation or derivation of the Software.

3. LICENSE AND USE OF SOFTWARE. In consideration of an initial Software license fee due and payable upon the Effective Date, LICENSOR grants to CLIENT a perpetual, limited, non-transferable, personal, and non-exclusive right and license to use the Software on the Licensed Computer in accordance with the terms of this Agreement as either an Administrator User or a Session Manager User or a Report User. CLIENT shall pay an additional fee per Generated Report (or per partial Generated Report) requested by CLIENT or on CLIENT’s behalf. Such fees shall be due and payable upon the generation of such Generated Report (or partial Generated Report). The Software licensee fees and Generated Report fees paid by CLIENT hereunder shall be in accordance with LICENSOR’s then current prices and conditions in effect. Upon termination of this Agreement for any reason, CLIENT’s rights to use the Software licensed herein shall immediately terminate and CLIENT shall return to LICENSOR the Software and other proprietary and confidential information of LICENSOR pursuant to Section 9 below.

CLIENT represents warrants and agrees that the Software will be used only in accordance with the terms of this Agreement, and only for the benefit of CLIENT. CLIENT may make one back-up copy of the Software for archive purposes and, if necessary, one backup copy to run temporarily on a replacement computer in the event of an emergency. CLIENT will reproduce all confidentiality and proprietary notices on each such copy and maintain an accurate record of its physical location. CLIENT will not otherwise copy, translate, modify, adapt, decompile, disassemble or reverse engineer the Software, except only when and to the limited extent that applicable law expressly permits such activity irrespective of the limitations contained herein.

CLIENT represents and warrants that all Report Users shall have verified clinical and psychometric credentials to interpret Generated Reports.

Business Third Parties may have limited access to the Software solely as either a Session Manager User and/or Report User Provided: Business Third Parties must agree in writing to be bound by the terms of this Agreement; and name LICENSOR as a third party beneficiary. In no circumstances may Business Third Parties have access to the source code or use the Software in connection with Business Third Parties’ own business operations or provide third parties with access to the Software. Business Third Parties may only use the Software for the benefit of CLIENT. CLIENT expressly agrees to indemnify and hold harmless LICENSOR, its officers, employees, agents, and subcontractors from and against all claims, liabilities, losses, damages, and costs (including reasonable attorney fees) suffered by LICENSOR arising from any act or omission by the Business Third Party.

4. GENERATED REPORTS. Subject to LICENSOR’s rights in the Software, LICENSOR shall not have or gain any right, title, or interest in any CLIENT supplied data contained in a Generated Report. CLIENT shall be responsible for the characteristics and interpretation of any such data and will indemnify LICENSOR against any loss, liability or expense (including reasonable attorney’s fees) arising out of or in connection with the use, or interpretation of any data contained in a Generated Report or other services or activities related thereto.

5. SERVICES EXCLUDED. This Agreement covers only the right to use the Software and is separate from related services, if any, required by CLIENT (e.g. software installation, custom programming, training, maintenance, updates and upgrades). To the extent CLIENT requires any such related services and if LICENSOR agrees to provide such services they shall be provided pursuant to a separate contract between CLIENT and LICENSOR. CLIENT agrees that LICENSOR shall not assume any responsibility for services directly provided to CLIENT by any third party.

6. PROPRIETARY DATA; CONFIDENTIALITY. CLIENT acknowledges that the information contained in the Software is confidential and contains trade secrets and proprietary data belonging to LICENSOR, and that the presence of copyright notices on the medium containing the Software does not constitute publication or otherwise impair the confidential nature thereof. CLIENT shall implement all reasonable measures necessary to safeguard LICENSOR’S ownership of, and the confidentiality of the Software, including, without limitation: (a) allowing its employees, agents and third parties access to the Software only to the extent necessary to permit the performance of their ordinary services to CLIENT and to require, as a condition to such access, that such persons comply with the provisions of this Section 5; (b) cooperating with LICENSOR in the enforcement of such compliance by CLIENT’s employees, agents and third parties; (c) prohibiting the removal or alteration of any copyright or confidentiality labels or notices contained in the Software and (d) prohibiting the copying of the Software except as permitted pursuant to Section 3, above. Notwithstanding the foregoing, CLIENT agrees not to disclose the Software (without LICENSOR’s prior written consent) to any service bureau or other third party whose primary function shall be to provide CLIENT with day-to-day management and support responsibility of the Software. CLIENT acknowledges that use or disclosure of the Software in violation of this Agreement may cause irreparable harm to LICENSOR.

7. WARRANTY. LICENSOR warrants to CLIENT that as of the Effective Date the Software (excluding third party software, if any) does not violate any United States patent or United States copyright of which LICENSOR is aware. In connection therewith and as LICENSOR’s sole obligation in respect of a breach of this warranty, LICENSOR shall either, at its option: (a) obtain for CLIENT the right to continue using the affected Software; (b) modify or replace such Software so as to eliminate the infringement; or (c) in the event neither of the above alternatives is available to LICENSOR on commercially reasonable terms, accept the return of the applicable Software and refund a pro-rated portion of the associated Software license fee.

LICENSOR shall not have any liability hereunder if any claim of infringement (i) is asserted by a Business Third Party, subsidiary or affiliate of CLIENT; or (ii) results from CLIENTs alteration of the Software. or (iii) use of any Software in combination with any third party product. This paragraph states the entire liability of LICENSOR and CLIENT’s sole and exclusive remedies.

LICENSOR further warrants that the Software (excluding third party software, if any), will substantially conform to the user documentation provided by LICENSOR for six (6) months from the Effective Date. The foregoing warranty shall not apply to the extent that any alleged defect derives from: (a) a combination of the Software with any program, equipment or device not supplied by LICENSOR; (b) any modification or customization of the Software by or on behalf of CLIENT; or (c) CLIENT’s failure to promptly install any updates or upgrades provided by LICENSOR to CLIENT.

8. WARRANTY DISCLAIMER. Except as provided in Section 6, all warranties, conditions, representations, Indemnities and guarantees, whether express or implied, arising by law, custom, oral or written statements of LICENSOR, or LICENSOR’s affiliates or otherwise (including, without limitation, any warranties of merchantability, fitness for particular purpose, or of error-free and uninterrupted use) are hereby superseded, excluded and disclaimed.

9. LIMITATION OF LIABILITY. In no event shall LICENSOR or LICENSOR’s affiliates, be liable for any consequential, indirect, special, punitive or incidental damages (including, without limitation, lost revenues or profits), whether or not foreseeable and whether arising out of breach of any express or implied warranty, breach of contract, negligence, misrepresentation, strict liability in tort or otherwise, and whether based on this Agreement or any transaction performed or undertaken under or in connection with this Agreement. CLIENT agrees that LICENSOR’s (and LICENSOR’s affiliates’) total liability to CLIENT or any third party for damages, regardless of the form of action, shall, in any event, be limited to the Software license fees received from CLIENT under this Agreement. Notwithstanding the foregoing, this Section 8 will not apply only when and to the limited extent that applicable law specifically requires liability despite the foregoing exclusions and limitations. CLIENT shall release, indemnify and hold harmless LICENSOR from any and all losses and damages to LICENSOR resulting from any breach of the terms of this Agreement or for any negligent or willful act by CLIENT causing damages to LICENSOR or LICENSOR’S business or customer relationships.

10. TERMINATION. LICENSOR shall have the right to terminate this Agreement (together with any other agreement then in effect between LICENSOR and CLIENT) for cause upon thirty (30) calendar days written notice if CLIENT breaches any of its obligations under this Agreement and thereafter fails to cure such breach to the reasonable satisfaction of LICENSOR within the first ten (10) days following CLIENT’s receipt of such notice of termination. CLIENT may terminate this Agreement for convenience upon prior written notice to LICENSOR specifying the reason for such termination. In the event CLIENT provides such written notice of termination to LICENSOR within 30 days of the Effective Date, LICENSOR will provide CLIENT, within a reasonable period of time following LICENSOR’s receipt of such written termination notice, a refund of the initial Software license fee paid to LICENSOR under Section 3 of this Agreement. Upon termination of this Agreement for any reason CLIENT shall, no later than the effective date of such termination: (a) purge all Software from all computer systems, terminals, personal computers, storage media, and any and all other devices and files with which the Software is used; (b) return to LICENSOR all copies (including partial copies) of the Software; and (c) if requested by LICENSOR, certify to LICENSOR in writing that it has complied with the foregoing obligations and has not provided total or partial copies of the Software to any third party. The termination of this Agreement for any reason shall not extinguish or diminish CLIENT’s obligation under Section 5 to maintain the confidentiality of the Software, which obligation shall continue and survive termination of this Agreement.

11. ASSIGNMENT. This Agreement is personal to CLIENT and neither this Agreement nor any of CLIENT’s rights or duties hereunder shall be assigned, sublicensed, sold or otherwise transferred by CLIENT, including to any successor-in-Interest to CLIENT, without LICENSOR’s prior written consent.

12. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Massachusetts and venue shall be Boston.

13. PAYMENT. CLIENT shall pay LICENSOR the Software license fees upon the Effective Date.

14. MISCELLANEOUS. CLIENT shall not disclose the terms and conditions of this Agreement to third parties (except CLIENT’s auditors, legal counsel or third parties whose review is mandated by law) without the prior written authorization of LICENSOR.

CLIENT acknowledges that certain log files are transmitted to LICENSOR when CLIENT uses the Software (including but not limited to when CLIENT generates reports or accesses updates (to the extent any such updates are provided to CLIENT)). LICENSOR may use these log files to update, enhance and further develop LICENSOR’s Software including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions, though LICENSOR shall have no obligation to do so.

During normal business hours and at any time during which the Software, or other LICENSOR confidential or proprietary information are being utilized, LICENSOR, or its authorized representative or licensors, shall have the right upon reasonable advance notice to audit and inspect CLIENT’s or any affiliate’s utilization of such items, in order to verify compliance with the terms of this Agreement. If confidential or proprietary information is given to Business Third Parties pursuant to this Agreement, CLIENT shall secure the right for LICENSOR to audit such Business Third Party as specified in this Section. Upon LICENSOR’s reasonable request, CLIENT shall deliver to LICENSOR a report, as defined by LICENSOR, evidencing CLIENT’s usage of the Software licensed under this Agreement.

LICENSOR is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control. In addition, LICENSOR may, with immediate effect upon written notice to CLIENT, withhold the provision of any obligation hereunder if CLIENT is deemed to be in breach of any other agreement entered into between LICENSOR and CLIENT.

If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless LICENSOR in good faith deems the unenforceable provision to be essential, in which case LICENSOR may terminate this Agreement effective immediately upon written notice to CLIENT. In addition, the waiver or failure of either party to exercise any right provided for herein shall not be construed as a continuing waiver of that right nor be deemed a waiver of any further rights granted herein.

This Software License Agreement shall be deemed effective upon receipt of payment of the initial Software license fee by LICENSOR and upon CLIENT clicking the accept button. (the “Effective Date”). LICENSOR’s obligation to perform hereunder is, at LICENSOR’s option, contingent upon LICENSOR’s timely receipt from CLIENT of the fees due under this Agreement. The Software shall be delivered and risk and property shall pass to Client when the Software is downloaded by CLIENT or when the Software is handed to the shipping agent on the CLIENT’s behalf.

This Agreement contains the entire agreement and understanding of the parties as to the subject matter hereof and supersedes all prior discussions and agreements with respect thereto. No amendment of this Agreement or waiver of any rights hereunder shall be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. All notices must be sent either in writing or by e-mail, except as otherwise expressly provided herein. All notices to LICENSOR shall be in writing and sent to an authorized representative of LICENSOR which shall be deemed to mean either the Chief Executive Officer, President or any Vice-President of Augur Enterprises, Inc.