Licensing Agreement

SOFTWARE AND SERVICE AGREEMENT
IMPORTANT- READ CAREFULLY: YOUR PURCHASE AND USE OF THE SOFTWARE AND SERVICES IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THIS AGREEMENT.
RECITALS

                A.            Occucare Systems and Solutions, LLC (“Licensor”) has developed programming and protocols for the assessment and rehabilitation of clients which includes a web-based software application, procedure manuals, documents and training programming.

                B.            The client (“Licensee”) agrees to obtain a license to the Software, and Licensor agrees to grant a license to Licensee, in accordance with the terms and conditions stated herein.
                                                                                 AGREEMENT

                1.             Introduction.  This Service Agreement (“Agreement”) governs the purchase and use of the Software and/or related Services (as defined below).  The Software and/or related Services may be purchased by: (a) executing an order form, work order or statement of work (for purposes of this Agreement each shall be referred to as an “Order Form”); or (b) using the Software and/or related Services. The individual or legal entity executing an Order Form or opening an account for Services under this Agreement shall be referred to as “Licensee” in this Agreement and the other party who executes the Order Form or provides the Services shall be referred to as “Licensor” in this Agreement. Each Order Form must incorporate this Agreement by reference, shall govern and control in case of conflict with the Agreement, and in conjunction with this Agreement shall form a separate agreement between the parties that execute the applicable Order Form. Please read this Agreement carefully before executing an Order Form or installing, accessing, or otherwise using the Software and/or related Services.  By executing an Order Form or installing, accessing, or otherwise using the Software and/or related Services, Licensee agrees to be bound by this Agreement.  Please maintain a copy for your records. If you (Licensee) do not agree with the terms of this Agreement, do not use the Software and/or related Services.

                2.             Service Description.  This Agreement governs the purchase and use of the Licensor’s Software and/or related Services set forth in the applicable Order Form or used by Licensee if no such Order Form has been executed. Licensor may alter, expand, or reduce the features of the Software and/or related Services from time to time without notice to Licensee.  Licensee agrees that Licensor’s obligation to provide Software and/or related Services is conditioned upon Licensee providing all information and assistance reasonably required to install the Software and/or perform the related Services and Licensee’s compliance with standards set forth by Licensor regarding hardware compatibility and installation requirements and Licensee hereby agrees to timely provide all such information, assistance and compliance.

                3.             License Grant.  Licensor hereby grants to Licensee a non-exclusive, non-transferable, limited license to use and access those features of the Software selected on the Order Form solely in connection with Licensee's location(s) as outlined in the order Form.  Licensee may purchase licenses for additional features of the Software or for additional locations by paying the appropriate software implementation and license fees for such features or locations.

               4.             Term.  This Agreement shall commence upon payment of the appropriate license fees and remain in effect for a period of one (1) year (the "Term").  Licensee may renew this Agreement upon payment of the appropriate license fees within thirty (30) days prior to expiration of the Term.          

5.             Termination.

                                (a)           Termination for Convenience.  Licensee may terminate this Agreement at any time by giving written notice of such termination to Licensor. 

                                (b)           Termination for Default.  Either party may terminate this Agreement upon thirty (30) days written notice if the other party is in material breach of any term or condition of this Agreement and fails to cure such material breach during such 30-day period.  Licensee shall be considered to be in material default under the terms of this Agreement if Licensee does not make any payment when due and payable or otherwise fails to perform any of its obligations under this Software License.  Licensor shall be in material breach if those features of the Software described in the sales literature do not consistently work as described in the sales literature and such failure is not caused by the negligence of the Licensee or the Licensee’s failure to adhere to the terms of this Agreement.

                                (c)           Effect of Termination.  Termination of this Agreement shall not result in a termination of any rights and obligations of the Parties as set forth herein or any liabilities and obligations (whether a payment obligation or otherwise) that have accrued prior to termination.  Upon expiration or termination of this Agreement, Licensee shall cease all use of the Software and return all documentation pertaining to the Software to Licensor, and Licensor shall have the right to disable Licensee's user name and password.  Upon termination for any reason, including without limitation to Licensor's material breach, Licensee shall be obligated to pay Licensor for all outstanding license fees, service or training fees, interest and costs as set forth in this Agreement.

                                (d)           Survival.  Sections 5(c), 6, 7, 10, 11, 12, 13, 14 and 15, 16, 17 shall survive the termination of this Agreement for any reason.

                6.             License Restrictions.  Licensee may not use or copy the Software, in whole or in part, except as expressly provided for in this Agreement.  Licensee may not modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Software or otherwise attempt to defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software, including, without limitation, any such mechanism used to restrict or control the functionality of the Software or derive the source code or the underlying ideas, algorithms, structure or organization form of the Software.  Licensee agrees to use the Software only for Licensee’s own internal business operations.  Licensee shall not rent, lease or re-license the Software or use the Software to provide data processing, outsourcing, service bureau, hosting services or training to third parties.  Licensee shall not permit any parent, subsidiary, affiliated entity or third party to use the Software, process or permit to be processed the data of any other party, or use the Software in the operation of a service bureau.  Licensee agrees that it shall not have the right to alter, maintain, enhance or otherwise modify the Software without the prior written consent of Licensor, which consent may be withheld or granted in the sole and absolute discretion of Licensor.

                7.             Beta Version.  Licensee acknowledges and agrees that certain portions or features of the Software may be trial, beta releases and/or upgrades to software.  Licensee agrees to provide timely feedback, which may include bug reports, conferences with Licensor representatives and written evaluations, to Licensor in relation to beta portions or upgrades of the Software.  Licensee acknowledges and agrees that all such feedback shall become the property of Licensor and that, unless otherwise mutually agreed by the parties, Licensor shall have no confidentiality obligations with respect to such feedback.  Licensee agrees that Licensor and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use the feedback.  Licensee will at all times, including during and after the term of this Agreement, keep the Software, all information relating to Licensee's use of the Software including any benchmarks, performance results and other information, confidential unless otherwise expressly agreed in writing by Licensor or until such time that Licensor makes this information available to the public.

8.             Support.  Provided that Licensee is current with all license fees and is not in material breach of this Agreement, Licensor agrees to provide Licensee with email and phone technical support at no additional cost.  Licensor will respond to any email or phone support question after receipt of a technical support question within one business day.  Further, Licensor will make reasonable attempts to remedy software issues as they arise.  From time to time Licensor will deploy upgraded versions of web based software and will review any input from Licensee in regards to it’s viability for said deployments as features in said deployments.

               9.             Training.  Licensor shall provide training for Licensee as outlined in the Order Form.        

              10.             Ownership.  The Software is protected by copyright and is proprietary and confidential to Licensor.  All rights, title and interest in and to the Software (including associated intellectual property rights) are and will remain vested in Licensor or Licensor's affiliated companies or licensors.  Nothing contained in this Agreement shall grant Licensee the right to use any Licensor trademark.  Licensee agrees that it will not use, or knowingly allow others to use, the Software, its content or any documentation, any of Licensor's trademarks or any related data or documentation for the purpose of creating similar software, programs, assessments, strategies or materials which is competitive with Licensor's Software and assessment program, and further will not furnish any information, data or copies of documentation to any third party to assist in the creation or design of competitive software, assessment programs, strategies or materials.  This Section 10 shall survive expiration or termination of this Agreement.

               11.          No Warranty. 

 (a)           Web Based Software.  THE SOFTWARE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY.  LICENSEE UNDERSTANDS AND AGREES THAT LICENSOR'S TRAINING SERVICES AND SUPPORT ARE PROVIDED "AS IS" AND "AS AVAILABLE".  LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  LICENSOR MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH LICENSOR OR THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET ANY OF LICENSEE’S REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE.  USE OF LICENSOR’S SOFTWARE IS AT LICENSEE’S SOLE RISK.  LICENSOR IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND LICENSOR’S REASONABLE CONTROL.

(b)           Licensee Reports.                Without limitation, to the fullest extent allowable by law, Licensee assumes the entire risk as to the content of all reports performed by Licensee, with the software, for dissemination to Licensee's customers.

                12.          Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, OR ITS SUPPLIERS OR AFFILIATES, BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF COVER OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM THE SOFTWARE OR THIS AGREEMENT WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT MAY NOT BE EXCLUDED BY LAW, LICENSEE AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY LICENSEE IN REASONABLE RELIANCE, UP TO THE GREATER OF THE AMOUNT OF A REFUND OF 50% OF THE LICENSING FEES PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE THOUSAND DOLLARS ($1,000.00).

                13.          Confidentiality.  Either party ("Recipient") may gain access to information concerning the business affairs, customers, vendors, finances, properties, procedures, operations, techniques, trade secrets or other proprietary or business information (collectively referred to as "Confidential Information") of the other party ("Disclosing Party"), with the agreement of the Disclosing Party.  Except as stated in Section 7, Recipient will not, directly or indirectly, disclose, or cause to be disclosed, any Confidential Information of the Disclosing Party to any third party and will themselves use the Confidential Information only to carry out those purposes contemplated by this Agreement.

                                (a)           Except as stated in Section 7, Licensee and Licensor agree that all Confidential Information disclosed pursuant to this Agreement will, at all times, remain the exclusive property of the Disclosing Party and that, in receiving any such Confidential Information, the Recipient will not acquire any interest in such Confidential Information whatsoever except as provided in this Agreement. 

                                (b)           Licensee and Licensor agree that the restrictions described in this section will remain in force during this Agreement and subsequent to its termination unless and until such time as (i) the Confidential Information becomes generally available to the public through no fault of the Recipient.

                                (c)           Licensee agrees that Licensor may place Licensee’s licensed clinic location and contact information on Licensor’s public website (www.occucare.net) in an effort to promote Licensee’s accomplishments in obtaining Software and training.  Licensee’s information will be placed on said public website within the service network, within news and events, and within disseminated bulk e-mails.  Licensee also agrees to have trained individuals placed within the service network under Licensees location and contact information with the individual’s level of certification, within news and events and within bulk e-mails.  Licensee also agrees that when an individual employed by Licensee achieves higher levels of certification through Licensor that news releases and bulk e-mails will be sent in regards to their level of certification.

14.          Indemnification.  Licensee agrees to indemnify, defend and hold Licensor and its affiliates and their officers, director, employees and suppliers harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees, which arise out of or relate to: (i) Licensee’s use of the Software (including without limitation, any person accessing the Software using Licensee’s accounts); (ii) any actual or alleged violation of this Agreement or law, rule or regulation by Licensee (including without limitation, any person accessing the Software using Licensee’s accounts); (iii) any actual or alleged infringement or violation by Licensee (including without limitation, any person accessing the Software using Licensee’s accounts) of any intellectual property, privacy or other right of any person or entity or (iv) information or content that Licensee submits, posts, transmits or makes available through the Software.

15.          Export and Import Control Laws and Regulations. Licensee acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and any related applications. Without limiting the foregoing, Licensee acknowledges that the Software and any related applications are or may be an "encryption item" subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce.  Licensee agrees not to export or re-export the Software or any related applications in any form in violation of the export laws of the United States or any foreign jurisdiction.

              

                16.           Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). If Licensee is a Covered Entity (as defined by HIPAA) and provides individually identifiable health information or PHI (each as defined by HIPAA) to Licensor as a Business Associate (as defined by HIPAA), then the Business Associate Agreement set forth at http://www.occucare.com/BAA is incorporated by reference herein.