SOFTWARE LICENSING AGREEMENT
THIS LICENSE AGREEMENT (THIS "AGREEMENT") IS BETWEEN YOUR LAB ("COMPANY") AND EASYRX, LLC, A GEORGIA LIMITED LIABILITY COMPANY ("EASYRX"). BY CLICKING THE "ACCEPT" BUTTON, COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTANDS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT,
The person clicking the ACCEPT button hereby represents to EasyRx that he or she is at least 18 years old and is competent and fully authorized to enter into a binding agreement on behalf of Company.
During the Term of this Agreement, EasyRx grants to Company a non-exclusive license to use the EasyRx software ("Software") and related documentation including without limitation website training materials (the "Documentation") in the ordinary course of the Company's dental laboratory business. The Software resides on one or more servers under the control of EasyRx and will be accessed by the Company online (Software as a Service).
EasyRx may change or discontinue any portion, feature or content of the Software at any time, withor without notice to Company, provided, however, that Company reserves the right to terminate this Agreement as set forth in Section 16(b).
2. CUSTOMIZATION AND ACCESS
(alpha_order_lowercase_a) Prior to accessing the Software, EasyRx may customize the Software pursuant to the Company's request. The term "Customizations" shall mean customizations of the Software created by EasyRx for the Company. All customizations including but not limited to software, data or modifications and enhancements to software, documentation, reports, designs, specifications, part creation and workflow customizations will be the sole and exclusive property of EasyRx upon Company's payment in full of amounts payable hereunder.
3. HELP DESK
During the Term of this Agreement, EasyRx will provide Company with help desk services during normal business hours: 9:00 AM EST through 5:00 PM Eastern Time Zone, Monday through Friday, excluding EasyRx holidays. (List of holidays will be provided upon request).
Help desk support is for routine questions, as opposed to maintenance services described in Section 5.
4. LIMITED INTEREST
(alpha_order_lowercase_a) Title to the Software and Documentation, including without limitation any Customizations, is not being transferred to Company pursuant to this Agreement. Except for the right to use the Software (with any Customizations) and Documentation pursuant to this Agreement, Company is not obtaining any proprietary or other interest therein, and Company shall not challenge EasyRx's claims of ownership therein. Company may not (i) copy the Software, (ii) sublicense or otherwise allow any other person or entity ("Person"), other than an employee or other agent of Company acting on behalf of Company, to use the Software, (iii) transfer the Software to any other Person (other than such an employee or other agent acting on behalf of Company) or (iv) grant to any Person the right to do anything prohibited in clause (i), (ii) or (iii) of this sentence, except as set forth in paragraph (b) of this Section.
(alpha_order_lowercase_b) The information about the Software available through its user interface, technical support documents, and user instruction manuals is the property of EasyRx. Any information received through the Software interface may be displayed for Company's internaluse only. Company may not reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate the information received through the Software to any third party without the prior written consent of EasyRx.
(alpha_order_lowercase_c) EasyRx acknowledges that shall acquire no ownership interest in customer or product data inputted by Company or dentists via the Software. In the event that the License terminates, Company may request a link allowing Company to download its prescriptions in PDF format and associated files, such request to be honored upon payment to EasyRxof a $150 fee or, if Section 16(e) applies, there shall be no fee.
5. MAINTENANCE SERVICES AND TECHNICAL SERVICES
(alpha_order_lowercase_a) EasyRx shall provide to Company maintenance services and technical services pursuant to the terms and conditions set forth in Appendix B to this Agreement, so long as Company pays the monthly service fee or technical services fee, as applicable, in accordance with Appendix A to this Agreement and performs all of its other obligations pursuant to this Agreement.
(alpha_order_lowercase_b) Maintenance services that will be provided as part of the monthly service fee at no cost to Company are outlined in Appendix B of this Agreement.
(alpha_order_lowercase_c) Reasonable and actual travel and living costs incurred by EasyRx in rendering maintenance services and technical services pursuant to this Agreement shall be payable by Company within 30 days after its receipt of an invoice itemizing such costs. Company shall also reimburse EasyRx for all actual, direct shipping charges incurred in shipping electronic media or other tangible items to Company.
Any fee payable by Company pursuant to this Agreement does not include any applicable federal, state, county or local tax. Any such tax (except for any such tax based on the income of EasyRx) assessed upon Company's licensing the Software pursuant to this Agreement, any services rendered by EasyRx pursuant to this Agreement, or otherwise relating to this Agreement (including, but not limited to, any excise, property, sales or use tax) shall be added to such fee and paid to EasyRx by Company within 30 days after Company receives an invoice from EasyRx with respect to such tax.
(alpha_order_lowercase_a) "Confidential information" shall mean all information disclosed by a party (the "Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure.
(1) Company's Confidential Information shall include its Data.
(2) Our Confidential Information includes the Services and Content.
(3) Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing) as well as business and marketing plans, technology, technical information, product plans and designs and business processes disclosed by such party.
(4) Confidential Information shall not include, however, any information that (i) is or becomes generally known to the public without breach of any obligation owed to by the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed by the Disclosing Party; (iii) is received from a third party without breach of any obligation owed by the Disclosing Party; or (iv) was independently developed by the Receiving Party.
(alpha_order_lowercase_b) The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information, but not less than that of reasonable care, (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need the access for purposes consistent with this Agreement and who have signed confidentially agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this Section 7(b).
(alpha_order_lowercase_c) The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Except as explicitly stated otherwise, any notice to be given by one party to the other shall be given by email confirmed by hard copy sent via overnight courier or other means that provide confirmed receipt of delivery within two business days.
9. COMPANY RESPONSIBILITY
(alpha_order_lowercase_a) Company is responsible for all use of the Software made under Company's identification (or "User ID") or password. Company's responsibility includes the payment of all fees set forth in this Agreement, whether the Software is used by Company or by another Person using Company's User ID or password.
(alpha_order_lowercase_b) Company is responsible for protecting and securing its access to the Software and related passwords and data from unauthorized use and disclosure. Company may not distribute copies of the Software in any manner.
(alpha_order_lowercase_c) Company must provide EasyRx with an online connection to the Company's computer system to the extent required to provide online troubleshooting and assistance.
(alpha_order_lowercase_d) Company covenants that it shall not utilize the Software in any manner that is illegal or otherwise engage in any activity related to the Software in any manner that violates the rights of the Company or any Person. Company is solely responsible for all materials that it and its clients upload, email, post, orotherwise transmit via the Software and will not transmit any materials that contain viruses or other harmful components. Any materials transmitted inviolation of this Agreement may be refused or removed by EasyRx in its sole reasonable discretion.
(alpha_order_lowercase_e) The EasyRx website is served and maintained in the United States, and Company agrees not to export any items in violation of any export controls. The Company will not transmit or allow any customer to transmit any such items.
(alpha_order_lowercase_f) Company may not, atany time, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human perceivable form.
(alpha_order_lowercase_g) If Company becomes aware of or believes there has been any breach of security related to the Software, Company shall notify EasyRx immediately.
Company must provide to EasyRx all information and cooperation reasonably requested by EasyRx to enable EasyRx to provide the Software and services described under this Agreement.
(alpha_order_lowercase_a) Payment of the Initial Fee and Customization Fee set forth in Appendix A to this
Agreement is required before Company can access the Software.
(alpha_order_lowercase_b) Company's Monthly Service Fee pricing schedule is set forth in Appendix A.
(alpha_order_lowercase_c) EasyRx will invoice Company for all fees due, and the invoice will be delivered to the address designated from time to time in writing by Company. Any amount not paid when due under this Agreement shall accrue interest at a rate of the lesser of 1.5% per month or the highest rate allowed by law. Company must also reimburse EasyRx for all reasonable costs and expenses incurred by EasyRx in collecting any such amount (including, without limitation, reasonable attorneys' fees and disbursements).
(alpha_order_lowercase_d) Any payments that are later than 45 days may, at EasyRx's sole discretion, be considered a material breach of this contract.
(alpha_order_lowercase_e) All payments are to be made in United States Dollars.
11. LIMITED WARRANTY
THE SOFTWARE WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE DOCUMENTATION. IN THE EVENT OF ABREACH OF THE FOREGOING LIMITED WARRANTY, THE SOLE AND EXCLUSIVE REMEDY OFCOMPANY SHALL BE TO RECEIVE ACCESS TO REPAIRED OR REPLACED SOFTWARE THAT CONFORMS TO THE FOREGOING WARRANTY. IF EASYRX CANNOT REPAIR OR REPLACE THE SOFTWARE, COMPANY MAY TERMINATE THIS AGREEMENT AS SET FORTH IN SECTION 16.
12. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE FOREGOING LIMITED WARRANTY, EASYRX MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND TO COMPANY OR ANY OTHER PERSON WITH RESPECT TO THE SOFTWARE OR ANY OTHER MATTER RELATING TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE PRECEEDING SENTENCE, EASYRX DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. EXCLUSION OF DAMAGES
IN NO EVENT SHALL EASYRX, AND ITS AFFILIATES, AND ITS AND THEIR
MEMBERS, OWNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RELATED IN ANY MANNER TO THE SOFTWARE OR THIS AGREEMENT.
14. LIMITED LIABILITY
THE AGGREGATE LIABILITY OF EASYRX, AND ITS AFFILIATES, AND ITS AND THEIR MEMBERS, OWNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, IF ANY, ARISING OUT OF ANY CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SOFTWARE OR THIS AGREEMENT SHALL NOT EXCEED THE LICENSE FEE PAID BY COMPANY TO EASYRX PURSUANT TO THIS AGREEMENT.
Company will defend, indemnify and hold harmless EasyRx and its employees, officers, directors, and other agents from any and all claims, costs, damages, expenses or losses imposed on, incurred by or asserted against EasyRx as a result of or relating to, (a) any noncompliance by Company with the terms and conditions of this Agreement, (b) the use of the Software by Company or by any Person using Company's user ID or password or (c) any content or other information provided to EasyRx by Company or materials transmitted by Company using the Software.
EasyRx will defend,indemnify and hold harmless Company from and against any and all claims, costs,damages, expenses or losses imposed on, incurred by or asserted against Companyas a result of or relating to any claims brought by third parties arising fromany infringement or misappropriation of any intellectual property right arisingout of or relating to Company's use of the Software in accordance with theterms of this Agreement.
(alpha_order_lowercase_a) The term of this License shall be until the earlier of (a) termination of this License at any time upon written notice from the Company to EasyRx, (b) termination of this License at any time upon written notice from EasyRx to the Company. If EasyRx terminates this License for any reason other than breach of this Agreement by the Company, the Company shall be entitled to a refund of prepaid fees covering any month beyond the month in which termination occurs. If the Company terminates this License for any reason, EasyRx shall be entitled to a prorated amount of the fees for services rendered during the applicable monthly billing cycle.
(alpha_order_lowercase_b) Upon termination of this Agreement, Company shall immediately cease to use the Software and Documentation and any other tangible item relating to the Software or Documentation in the possession or under the control of Company, (ii) not useor permit any Person under the control of Company to use the Software or Documentation and (iii) pay to EasyRx all amounts due and owing under this Agreement that have not previously been paid.
(alpha_order_lowercase_c) The provisions of Sections 4 - 24 shall survive the termination of this Agreement for any reason and may be enforced after such termination.
(alpha_order_lowercase_d) In the event that EasyRx or its successors or assigns cease to be an active business enterprise or otherwise cease to provide continuing product support (excluding situations where Company has failed to upgrade to the current supported version of the Software), EasyRx will (i) keep its site up for 30 days after such event, and email Company a link allowing Company to download its prescriptions in a PDF format along with associated files, and (ii) make available a running version of the Software as customized for the Company via a hosting company designated by EasyRx, said version to be accessible by Company upon Company's payment to the hosting company of the relevant hosting fees.
17. ENTIRE AGREEMENT
18. EQUITABLE RELIEF
Company acknowledges that a remedy at law will be inadequate if Company violates any provision of Sections 1, 4, 7, 9, and16(c), and EasyRx acknowledges to Company that a remedy at law will be inadequate if EasyRx violates any provision of Sections 4, 7, 9 and 16(c). Each of EasyRx and Company consent to the other's obtaining from a court having jurisdiction an injunction, a restraining order, specific performance or any other equitable relief against the other to enforce said provisions. The right of EasyRx and Company to obtain such equitable relief shall be in addition to, and not in lieu of, each other right and remedy they may have under this Agreement or applicable law (including, without limitation, monetary damages).
No failure of EasyRx or Company to exercise, and no delay by EasyRx or Company in exercising, any right or remedy under this Agreement shall constitute a waiver of such right or remedy. No waiver by EasyRx or Company of any such right or remedy under this Agreement shall be effective unless made in a writing duly executed by EasyRx or Company, as applicable.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement shall be prohibited by or invalid under such law, it shall be deemed modified to conform to the minimum requirements of such law or, if for anyreason it is not deemed so modified, it shall be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder thereof or any other such provision being prohibited or invalid.
This Agreement shall be binding upon and inure to the benefit of EasyRx and Company, and each of EasyRx's and Company's successors and assignees, except that none of Company's rights or obligations under this Agreement may be assigned by Company to another Person without first obtaining the written consent of EasyRx.
22. APPLICABLE LAW; JURISDICTION AND VENUE
This Agreement shall beconstrued under, and governed by, the laws of the State of Georgia. Theparties agree that jurisdiction and venue for any legal proceedings arisingfrom or in any way connected to this Agreement will lie in the Cobb County Georgia,and both parties hereby submit and consent to the jurisdiction and venue ofsaid courts.
23. THIRD-PARTY BENEFICIARIES
No Person (including, without limitation, an affiliate of Company) is a third-party beneficiary under this Agreement. No provision of this Agreement may be enforced by a Person other than EasyRx or Company.
24. FORCE MAJEURE
Neither party shall incur liability to the other for delay or default in performing any obligations under this Agreement if such delay or default results from force majeure, including but not limited to, wars or insurrections, acts of government and acts of God. The parties will use commercially reasonable efforts to minimize the adverse impact of such events. The party experiencing the force majeure shall immediately notify the other party of the existence of the force majeure condition and the anticipated extent of the delay or non-delivery.
Payment of the monthlyservice fee as set forth in pricing schedule attached with this agreemententitles Company to the following at no additional cost:
New versions of the software released by EasyRx at the discretion of EasyRx.
As determined by EasyRx, new functionality enhancements to the software made between version releases.
Major version upgrades will not include any required conversion or reformatting of
Company's customizations to be compatible with the new version of the Software. Work required to bring forward Company's customizations to be compatible with the new version of the Software will be considered outside of the scope of the monthly fee. This work will be considered content updating and billed at the rate set forth in Appendix A of this agreement. Company will be informed of the work required to update their customizations and EasyRx will not perform the work without receiving Company's approval in advance.
Necessary fixes to the Software that are not related to the Company's custom needs.
General support for any failure of the Software to perform that is not related to the
Company's custom needs or acts or omissions.
Software upgrades that are required for compatibility with future versions of the major web browsers at EasyRx's discretion.